Probate Jurisdiction
Core concepts
Probate jurisdiction concerns which court and which registry may entertain an application, and the limits of the court's power over assets. Understand: the grant's function as evidence of the executor's or administrator's authority; the distinction between contentious and non-contentious business; the court's power to rectify a will for clerical error or failure to understand instructions; and the court's power to remove or substitute personal representatives.
Traps
A frequent trap is the foreign element: a grant made in one jurisdiction does not automatically authorise dealing with assets situated elsewhere, and resealing or a separate grant may be required. Another is the difference between the court's probate jurisdiction (validity of the will and entitlement to the grant) and its construction jurisdiction (what the words mean). Questions may also test the court's discretion to pass over a person entitled to a grant in favour of another.
Worked example
A testator domiciled abroad dies leaving immovable property locally and movable property abroad. The local court can grant probate over the local immovable property; the movable property follows the law of domicile. Do not assume one grant covers everything.
Rule of thumb
Ask three questions: is the will valid, who is entitled to the grant, and does the court have power over this asset? Only then consider the practical application.