Whether failure to issue a citation gives rise to an abuse of process
Quick Take
1Under RSC O 73 r 2(2), a writ commencing an action for revocation of a grant of probate cannot be issued unless a citation under r 8 has first been issued or the probate has been filed; an attempt to file a writ without satisfying this precondition is an abuse of process.
2A person who is neither a beneficiary under the impugned will nor otherwise able to demonstrate a sufficient interest (such as being a beneficiary under a prior will) lacks standing to commence a probate revocation action, and any such proceeding would be frivolous as obviously untenable.
3Where a registrar refuses to accept a document for filing under RSC O 67 r 5 on abuse of process grounds, the applicant must obtain leave of a judge by ex parte application supported by affidavit.
