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Foreign domicile

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Requirements for an affidavit of law

Foreign domicile.

When a person dies domiciled outside the Republic of Ireland, but leaving property in the Republic, the grant will be given according to the law of the country of the deceased's domicile at death where the property is movable, but according to Irish law (Lex Situs) where the property is immovable. (see pages 14 and 38 Probate Practice in a Nutshell by Eamonn G. Mongey).

Where the deceased died possessed of:-

Both movable and immovable estate in this jurisdiction.

  1. The applicant must show entitlement under Irish law by showing title in the oath, and
  2. must show entitlement under law of domicile by lodging:
    a sealed and certified copy of the grant (and will, if applicable,) from the appropriate court in the country of domicile or, where no such grant has issued, an affidavit of law from a lawyer practising, or who has practised, in that jurisdiction.

Movable estate only in this jurisdiction.

The applicant must show entitlement under law of domicile by lodging:-

  • a sealed and certified copy of the grant (and will, if applicable,) from the appropriate court in the country of domicile,
    or,
  • where no grant has issued, an affidavit of law from a lawyer practising or who has practised in that jurisdiction.
     

If the applicant also has entitlement under Irish law, such title should be shown in the oath and a full grant in respect of both movable and immovable estate can issue.

If, however, the applicant does not have entitlement under Irish law, a grant limited to the movable estate only can issue - (order 79 Rule 5 (8)(a))

Immovable estate only in this jurisdiction.

The applicant must show entitlement under Irish law by showing title in the oath.

If the applicant can also show entitlement under the law of domicile, that is, sealed and certified copy grant (and will, if applicable,) or an affidavit of law, a full grant in respect of both immovable and movable estate can issue.

If however the applicant does not show entitlement under the law of domicile a grant limited to the immovable estate can issue - (order 79 Rule 5 (8) (b))

Foreign domicile and executor applying in this jurisdiction.

Where the deceased died domiciled outside this jurisdiction and where a grant has been extracted by the executor in the jurisdiction of domicile and where the executor intends applying for a grant in this jurisdiction, the normal set of executor papers should be lodged. The only difference is that a sealed and certified copy of the will and grant (from the court of foreign domicile) is exhibited in the oath (i.e. in place of the original will). A full grant can issue in these cases. (If the attorney of the executor is applying, the documents for a grant of administration with will annexed must by prepared by the attorney.)

Foreign domicile and same applicant is applying in this jurisdiction.

Where the deceased died domiciled outside this jurisdiction and where a grant has been extracted in the country of domicile and where the same applicant intends to apply for a grant in this jurisdiction (and has title here) and where the will is not in a f oreign language, the process is again straightforward. The normal set ofpapers should be lodged with your application, along with a sealed and certified copy of the grant (and will) if applicable (from the court of foreign domicile). Your entitlement under Irish law is set out in your oath and the Sealed and Certified copy grant will confirm entitlement under the law of domicile. Hence, a full grant can issue.

Will in a foreign language.

Where there is a foreign language will, it is necessary to obtain a probate officer’s order before lodging the application for a grant of representation. See the probate officer's orders section for further information.

Requirements for an affidavit of law:

The affidavit should be sworn by an independent lawyer practising, or who has practised, in the relevant jurisdiction. His/her qualification to make the affidavit should be stated.

The following matters should be dealt with.
  1. The facts of the particular case should be set out and all relevant documents exhibited.
  2. The legislation of the relevant jurisdiction governing entitlement to administer the deceased's estate should be referred to and quoted.
  3. Whether a grant has issued in the country of domicile.
  4. When the affidavit is required to deal with the validity of a foreign will the legislation of the relevant jurisdiction governing the requirements for the valid execution of a will should be referred to and quoted.
  5. When the affidavit is required to show entitlement to extract a grant, it should state who is or are the person or persons entitled to administer the deceased's estate under the law of the country of domicile.
  6. If more than one person is entitled to administer the estate, it should be stated whether they are entitled to administer independently of each other, or if all must administer together.

 

 
 
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Content reviewed: May 2017