Duhaime's Law Dictionary


Proof in Common Form Definition:

A summary approval of an uncontested will by the court, subject to subsequent contest.

Related Terms: Proof in Solemn Form

Where a will is submitted to the court for probate and it is not contested, it is usually proved by common form, which means without any substantial assessment of the will and by some form of summary procedure.

The English Supreme Court Act 1981 at §128, properly describes common form as synonymous with "non-contentious"

In Wills and Estates, the authors write:

"Probate in common form, essentially an administrative procedure, is usually issued on an ex parte application of the executors."

Usually, proof in common form is all that is required for a grant of probate to issue.

The counterpart to proof of a will in common form is proof in solemn form. Whereas the latter process effectively shields the will from subsequent contest save and except fraud or the discovery of a subsequent will, proof in common form does not.

In some cases, where it is anticipated that a will will be contested, proof by solemn form may be preferred, albeit at greater complexity and cost in legal fees.

In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, the authors write:

"Where a will is proved in common form, those whose interests are adversely affected may later challenge its validity in an action. If such a challenge succeeds, the probate originally granted will be revoked."

In Probate and Estate Administration, the authors write:

"A grant of probate in common form can subsequently be revoked if, for example, a later will shows up or if the will is shown to be invalid (because the will was not properly signed or contains another formal defect or because the testator lacked testamentary capacity or was the victim of undue influence, among other reasons)."

REFERENCES:

  • Duhaime, Lloyd, Legal Definition of Proof in Solemn Form
  • Keeshan, D., Halsbury's Laws of Canada: Wills and Estates (Toronto: LexisNexis, 2007), page 470.
  • Martyn, J. R. and Caddick, N., Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 19th Ed. (London: Sweet & Maxwell, 2008), page 288.
  • Vogt, J., Ed., Probate and Estate Administration Practice Manual (BC) (Vancouver: Continuing Legal Education Society, 2008), pages 18-16 and 18-17.

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