Citation Proceedings

• Author: Karen Nunez-Tesheira
• Pages: 450-466

450 / Probate Practice and Procedure

INTRODUCTION

A citation is an instrument issuing out of the Supreme/High Court Registry

under the seal of the court and signed by the registrar, setting out the

reason for its issue and the interest of the person at whose instance it was

issued, and calling upon the person cited (the citee) to enter an appearance/

acknowledge service of the citation within the time prescribed and to take

the steps indicated. It also sets out the nature of the order that the court is

asked to make unless good cause is shown.

In non-contentious probate business, citations are issued-:

(a) to accept or refuse a grant;

(b) to take probate; or

(c) to propound testamentary papers.

CLEARING OFF

With respect to (a) and (b) above, citation proceedings are a means of

clearing off a person with superior rights to a grant of representation who

not only refuses or neglects to take out the relevant grant, but also refuses

to renounce his rights. In the event of such person being cited and failing

to enter an appearance or acknowledge service of the citation, the court is

free to make an order for a grant to issue to the citor instead.1

Where the person with a superior title cannot be traced, a citation

served by advertisement may be ordered by the court.

Jamaica

Prior to the passage of the CPR 2002, it was unclear whether citations to

accept or refuse a grant of letters of administration (with or without will

annexed) were applicable to Jamaica. This was primarily because of the

absence of specific probate rules or statutory provisions so providing and

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also because, until the coming into effect of Rule 68.11 and 68.18 CPR

2002, there was no order of priority in respect of entitlement to grants of

letters of administration (with or without will annexed).

However, citations to take probate and citations to accept or refuse

probate were and still are applicable to Jamaica although there was no

specific rule to that effect until the passage of Rule 68.42, CPR 2002.

However, the Executor’s Renunciation Act, which provides for an executor

to renounce his right to probate, clearly indicated, although not expressly,

that an executor’s right to probate could be cleared off in Jamaica, not only

by renunciation, but also by citation to accept or refuse a grant of probate

or otherwise by citation to take probate, depending on the circumstances

given that the purpose of such citation, was essentially the same as that of

the executor’s renunciation.

The position with respect to citation and the ambit and scope of its

application have now been expressly clarified by Rule 68.41, 68.42 and

68.44 CPR 2002, the provisions of which provide for the various types of

citations.

Clearing off Executor with Power Reserved

All jurisdictions

With respect to an executor with power reserved, although he is equally

entitled as the proving executor(s) to take out a probate grant, he may

nonetheless be cited by the proving executor(s) or, in all the jurisdictions

save Barbados, in which jurisdiction the chain of representation has been

abolished since November 13, 1975, by the executor of the last surviving

proving executor (executor by representation) to accept or refuse a grant.

However, apart from this exception, persons with equal rights to a grant

are not cleared off, whether by citation or otherwise. Where the non-proving

executor is cited by the executor by representation, to accept or refuse a

grant of probate and he appears to the citation/ acknowledges service thereof,

and takes out the probate grant, the rights of the executor by representation

to administer the testator’s estate are thereby extinguished.2

Waiver of Citation Proceedings

Trinidad & Tobago

Where the person having a prior right to administration is either not resident

or not living within Trinidad & Tobago, the court in such circumstances

may grant administration to any person resident therein who would

otherwise be entitled to the same without the previous citation to or consent