Foreign Resident Executors
16 June 2022
Oftentimes we deal with foreign resident executors and the question arises as how to approach these cases. There is generally one of two options. A particularly favoured option of mine is the power of attorney grant. This arises under Rule 23 of Order 79 which states that
23. In the case of a person residing out of, or about to leave the jurisdiction of the Court, …… administration…..may be granted to his attorney, acting under a power of attorney.
Oftentimes solicitors shy away from being appointed executor as they wish to evade the additional responsibilities of being an executor and potential liability that arises. This makes sense but there is the advantage of being in control of the grant and the administration which may outweigh that downside.
Some solicitors (incorrectly) conclude that by being an executor in Ireland they thereby become secondarily liable to the CAT in the case. This is a misconception and I have dealt with this in detail in previous blogs. The very fact of being the solicitor who acts in the estate of non-resident beneficiaries and executors makes the solicitor secondarily liable for CAT. This is regardless of whether the solicitor is actually acting as the executor.
Sometimes practitioners feel that because the executor is abroad, then, it’s going to be difficult to have documents sworn up. This shouldn’t be the case. For those who may be unfamiliar with the rules, it is possible to have documents sworn abroad. I have heard that some practitioners arrange for a foreign executor to “swear” an oath abroad and then complete the jurat afterward by a commissioner/solicitor in Ireland. I know that you are not one of them, but it has been known to happen. This faulty practice is unnecessary as Oaths can be sworn abroad. It is dealt with under order 40 of the Rules of the Superior Courts. (See in particular rules 40(11) and rule 40 (39)). Essentially these rules state that an Oath can be sworn abroad, by a person authorised by the laws of that country to administer oaths. For common law jurisdictions, this is handily a solicitor and so in many of the jurisdictions that we deal with (eg UK, Australia, etc) a local foreign based solicitor can be used for swearing.
You may be surprised to learn that one of the most common reasons why probates are rejected are because the jurat is incorrect. So to help you with foreign cases, I attach here a form of jurat to be used in a foreign case to make life easier.
Hope this helps and if you have any probate, will drafting or capacity queries please do not hesitate to contact me on firstname.lastname@example.org
Here is the form of the jurat