Upon someone’s death, in order to administer their estate, should they have substantial assets, the executor will need to obtain a grant of probate of the deceased’s last will.
Probate is proof to all the world that a particular will is the last valid will of a deceased and may be relied upon by the executor to call in assets, liquidate assets and distribute the estate. It is the ultimate document of proof in an estate of a deceased last will.
Now there are two different ways to obtain probate. The main way and the most common way is where no one contests the validity of the deceased’s will. This is known as a common form grant of probate. This accounts for 99% of all will probate applications, and the New South Wales Supreme Court receives about 100 of these applications per day. This is where everyone accepts that the will that the testator made is a valid will.
It sets out who they want to leave their assets to. It was properly executed by the testator. It was witnessed by two independent people who have no interest in the will’s appointments or gifts, i.e. they’re not executors or beneficiaries. That the testator had testamentary capacity, soundness of mind. They knew that they were making their will. They also knew and approved the contents of the will. The testator knew what assets they owned when they made the will and they knew that there are various people, generally family members, who they may have some expectation to make provision for, and they did not have any delusions of the mind as to those people. It’s quite a list.
These applications never enter the boxing ring. They go uncontested. Issued pretty much straight forward. So such an application to the Supreme Court registrar is prepared and it provides the original will, the death certificate, the inventory of property and some various sworn documents and declarations by the executor. If all appears in order, the court registrar, court officer, seals the document and that becomes the grant of probate for the executor to go forth and freely administer the estate without impediment.
But what happens when there is a dispute as to the validity of the deceased last will? In that instance, generally a grant in solemn form is required, which is a grant issued by a Supreme Court judge, not a registrar. After a thorough twelve round examination of all the relevant issues.
Examples of when this may occur are when there’s allegations the will was not properly executed by the testator. That it was not properly witnessed. That the testator lacked testamentary capacity. That they did not have knowledge and approval of the contents of the will. That the testator did not know what assets they own. They did not know what people they have some expectation to make provision for. And they may have had delusions of the mind as to those people. Might be allegations the last will was revoked. Allegations of fraud. Allegations of forgery and possibly undue influence.
What happens then, is a solemn form grant of probate must be issued by the court by a Supreme Court judge. This involves legal proceedings wherein all interested parties must be served with a notice of the proceedings. That is, everyone named as beneficiaries in the questioned will and all earlier wills and anyone who may benefit under intestacy. It can be a very long list.
The purpose of these notices is to shake out any and all possible claims upon the estate, as once a solemn form grant is made of whatever is the deemed last will of the deceased, that will be an end to any validity claims upon the estate; it’ll all be over. Affidavits of the executor and those who witnessed the will must be filed, testing witnesses. And if anyone who receives a notice wishes to dispute the application, they must then bring forth their own counterclaim.
The parties are then put to the proof of establishing what is or what is not the deceased’s last valid will, and this can be quite a long slugfest and ultimately one will will be deemed to be the winner. Where the executor of that will get to hold the title belt above their head, where they are deemed the undisputed heavyweight champions of the world, as far as it relates to the estate. The only way then that the solemn form grant can be overturned is if at a later date, a later will is discovered or if the solemn form grant was obtained by fraud.
Common form versus solemn form grants of probate.
The very quickest overview. Hope it’s been of some interest. Talk again next time.