Corrective Affidavits and the Statement of Affairs
27 January 2022
You may have been used to doing Corrective Affidavits under the old CA24 system. Under the older system, Corrective Affidavits had to be filed using the form CA26. There was a good degree of formality around this, as the CA26 was a fresh document sworn by the executor. It also had to be filed in the probate office.
Under the new Statement of Affairs system, its a lot less formal. If you have a change that you need to make, you simply go onto ROS and make the change on the Statement of Affairs that is filed. It creates a potential temptation to be more lax about either the SA.2 in the first place or corrections afterwards, which really should not be the case.
If you submitted a CA24 for deaths from 5 December 2001 to 4 September 2020, then the form to be submitted is still the CA26.
Revenue are clear on their guidance. Corrective affidavits are to be used if a new asset turns up that you were unaware of or vice versa (ie you have included an asset you shouldn’t have). Corrective affidavits are not to be used to cater for fluctuations in value. However, that may or may not always be the case. Obviously in respect of publicly quoted shares, the share value is set as per the date of death. I think however there is a live issue with respect to real property. Obviously hindsight makes everything clear and I am sure that many of you have dealt with clients where they received a building site during the mid-2000s pre-crash and the site value is wildly at odds with site values in the early 2010s. This type of case is not one for a corrective affidavit. As Revenue rightly point out, just because the value of an asset drops (due to say a property crash) it is not a reason to submit a corrective affidavit.
However is that always the case? Is there not an argument to say that a valuer can be incorrect on a property valuation, or that, with the benefit of hindsight there was no reality to a particular property valuation obtained at the date of death? Is there no circumstance where property values obtained at the date of death shouldn’t be revised? I think there can be justifiable reasons.
Obviously, if a property value submitted in a SA.2 is being revised, then, there should be a supporting valuation to back up the revised valuation. The revision should be done for a genuine reason and not to “massage” figures to suit a beneficiary. However, I would argue that one cannot be entirely dogmatic on the issue of property values and there are cases where a corrective affidavit may be appropriate.
Hopefully this helps and if you have any queries in relation to probate, will drafting or tax matters, feel free to email me on ckelly@hcalaw.ie.
I set out here the Revenue’s guidance on Corrective Affidavits.
Colm Kelly, The Probate Hub
