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Probate claim procedure—table This table provides an outline of the procedure where there is a probate claim. For further guidance, see: Practice and procedure—contentious trusts and estates—overview and Probate actions (probate claims)—overview. Action CPR Issue of claim form If Claimant is a child or protected party follow CPR Part 21 in relation to appointment of litigation friend. CPR 21.1–CPR 21.6 Claimant prepares claim form (Form N2), with a copy for filing and further copies for service on each Defendant. CPR 7.2, CPR 57.3 Claim form must contain a statement of the nature of the interest of Claimant and of each Defendant in the estate of the deceased to which the claim relates. CPR 57.7(1) Particulars of claim may be contained in claim form (or served separately (see below)). CPR 7.4(1)(a) If the proposed claim is for revocation of grant: Every person who is entitled or claims to be entitled to administer the estate of the deceased under an unrevoked grant of probate of the Will or letters...
Procedural guide—application for a freezing order—family proceedings Where there are concerns that a party intends to dispose of assets in a way that will defeat a claim for financial provision, or has already done so, immediate action may have to be taken to secure the assets. Freezing orders (historically known as Mareva injunctions) are an interim remedy and may be made under Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 20 or under the inherent jurisdiction. An application to restrain future dealings is most commonly made under section 37 of the Matrimonial Causes Act 1973 (MCA 1973) or Schedule 5 Part 14, para 74(2) of the Civil Partnership Act 2004 (CPA 2004). The purpose is to prevent a party removing assets located in England and Wales, or dealing with assets wherever they are located. The applicant has to show that there is a good arguable case against the respondent and a real risk that a judgment will go unsatisfied because of the disposal by the respondent, or that refusal...
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Passing off—flowchart Passing off action Passing off is a common law action that is used to protect unregistered trade mark rights in the UK. The stages of the Flowchart cover establishing a claim for passing off covering: • the three essential elements of goodwill, misrepresentation, and damage • sending a letter of claim, issuing proceedings and applying for an injunction • commencing proceedings in the general Intellectual Property List or the Intellectual Property Enterprise Court sub-list in the Business and Property Court, in the Chancery Division at the High Court • case management including allocation, the case management conference and directions • disclosure and evidence including inspection, additional disclosure and survey evidence • trial preparation and post-trial activities such as election between damages or an account of profits • applications to appeal Stage 1—preparing to bring a claim and pre-action matters Claim preparation and pre-action matters—Practice Notes • Passing off—goodwill, misrepresentation and damage • Trade mark and passing off disputes—a practical guide • How to run an IP dispute...
Patent infringement action—flowchart This Flowchart provides an overview of a UK patent infringement action with links to relevant Practice Notes, Precedents and court forms. The first stage covers claim preparation and pre-action matters. The second stage covers the letter before action alleging infringement. The third stage covers commencing proceedings. The fourth stage covers case management and allocation. Stage five covers disclosure of documents and evidence of fact and of experts. The sixth stage covers trial preparation and trial and the seventh stage covers post-trial matters. The Flowchart covers proceedings brought in the Business and Property Courts Intellectual Property List including the Intellectual Property Enterprise Court. Stage 1—preparing to bring a claim and pre-action matters Claim preparation and pre-action matters—Practice Notes • Key issues before launching patent infringement action • Patent infringement • Patents—entitlement and co-ownership • Exceptions and defences to patent infringement • Patent invalidity and revocation • UK Intellectual Property Office—mediation scheme • Interim and final injunctions—overview • Disclosure pilot scheme—overview Claim preparation and pre-action matters—Forms • Application...
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Impact of coronavirus (COVID-19) on affidavitsAlternative practical options and other guidance on swearing and affirming documents in regular circumstances are set out in Swearing and affirming affidavits below. However, during the lockdowns in response to the coronavirus (COVID-19) pandemic, the courts were amenable to more creative approaches. In ETC Export Trading Company, the court accepted an undertaking that the affidavit would be sworn where the combination of the ongoing coronavirus pandemic and the urgent nature of the application meant that it had not been possible for the affidavit to be sworn in time. If there are genuine difficulties in providing an affidavit, the court may even consider accepting a witness statement instead of an affidavit where one has been ordered. Ifaco Feed Company S.A. v Societe De Distribution Nouvelle D'Afrique (Sodinaf) S.A.R.L provides an example of that, although the judge’s comment was a closing remark and that view may not be replicated by others.When to use an affidavitAffidavits are a means of adducing sworn, written evidence. In certain circumstances, affidavits...
This Practice Note covers how information contained in a document or statement made by or on behalf of a person, can be relied on where there is a requirement to validate its authenticity in a commercial context. There are a number of ways to validate information and documents and this Practice Note explains when statutory declarations, oaths, affirmations and affidavits may be used; how to check that these have been correctly prepared, and includes guidance for practitioners when using these methods of validation. This Practice Note looks at the requirements for the following:•Statutory declarations•Oaths•Affirmations•Affidavits•Formalities for administering statutory declarations, oaths, affirmations and affidavits•Statutory declarations and affidavits out of jurisdictionFor information on notaries, their purpose, steps required to notarise a document and the meaning of legalisation, see Practice Note: Notaries and notarisation.For guidance on certified copies, including what a certified copy is, when is a certified copy required, who can certify a document, what format the certification should take, use of certified copies internationally and their use in evidence, see Practice Note:...
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Drafting notes for claim form in s 21 notice accelerated possession proceedings How to use these drafting notes A claim for possession of a residential property situated wholly or partly in England let on an assured shorthold tenancy (AST) using the accelerated possession procedure is made using Form N5B England. These drafting notes are for completing form N5B England only. Note that from 1 December 2022 ASTs and other forms of residential tenancies and licences of properties in Wales were replaced with occupation contracts under the Renting Homes (Wales) Act 2016. Existing ASTs became converted occupation contracts. For accelerated possession claims of residential properties situated in Wales, Form N5B Wales should be used. For further guidance, see Practice Note: Renting Homes (Wales) Act 2016—terminating standard occupation contracts and recovering possession. General points for issuing accelerated possession proceedings These drafting notes are designed to assist in completing form N5B England, which is the claim form where a private landlord has served a section 21 notice on the tenant...
Standard order 3.2—search order—family proceedings In the Family Court sitting at [Court name] No: [case number] [ The Matrimonial Causes Act 1973 OR The Civil Partnership Act 2004 OR The Matrimonial and Family Proceedings Act 1984 and Schedule 7 to the Civil Partnership Act 2004 OR The Senior Courts Act 1981 ] [DELETE AS APPROPRIATE] The [Marriage OR Civil Partnership OR Relationship] of [applicant name] and [respondent name] After hearing [name the advocate(s) who appeared] After reading the statements and hearing the witnesses specified in the recitals below Search order made by [name of judge] on [date] sitting in private  To [RESPONDENT NAME] of [RESPONDENT ADDRESS] Warning: if you [RESPONDENT NAME] disobey this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized Any other person who knows of this order and does anything which helps or permits [RESPONDENT NAME] to breach the terms of this order may be held to be in contempt...
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When administering an oath, do I have to verify the deponent’s identity? Rules and guidance from the regulators on this point are thin on the ground, and getting ever thinner. The SRA Code of Conduct 2011 provided you must properly administer oaths, affirmations or declarations where you are authorised to do so (O(11.4)). There is no mention of administering oaths in the SRA’s 2019 regime. We have looked back at historic professional conduct rules and guidance to see if they shed any light on solicitors’ professional obligations when administering oaths. The 1999 Guide to the Professional Conduct of Solicitors says: ‘17.06: Administering oaths When administering oaths and affirmations or taking declarations, a solicitor is under a duty to ascertain: a) that the deponent is in the solicitor’s presence by enquiring whether the signature to the document before the solicitor is the name and in the handwriting of the deponent; b) that the deponent is apparently competent to depose to the affidavit or declaration; c) that the deponent knows he or...
What is the process for paying a sum due to a residuary beneficiary into the Court Funds Office? Payments to the Court Funds Office should be made in accordance with the Court Funds Rules 2011, SI 2011/1734, Pt 2—Deposit of Funds in Court. Deposits are usually by cheque or banker's draft made payable to the 'Accountant General of the Senior Courts'. Where a personal representative wishes to make a payment into court, there is a specific process under Trustee Act 1925, s 63. Under the Civil Procedure Rules 1998, SI 1998/3132 (CPR 1998), PD 37—Miscellaneous Provisions About Payments Into Court, paragraph 6 provides guidance on this process. The trustee must file a witness statement or affidavit describing the trust and the instrument or circumstances of its creation, the name of the individual interested or entitled to the money and their address (if known), a statement agreeing to answer any inquiries of the court and the trustee's address for service. The application and witness statement or affidavit...
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This week's edition of Dispute Resolution weekly highlights includes analysis of a number of key DR developments and key judicial decisions including: the Civil Justice Committee’s response to the consultation on contempt of court and the Court of Appeal decision in Clifford Chance LLP v Societe Generale SA (jurisdiction agreement); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.
This Q&A considers the application for a grant of letters of administration by the deceased's mother and sister for the use and benefit of the deceased's minor child, where the child's surviving parent does not wish to apply for a grant.
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