Alexander and Associates
Solicitors
Suite 12, Level 10
“Leura” Building
809 Pacific Highway
CHATSWOOD NSW 2067

Tel: (02) 9413.2600

Fax: (02) 9419.8872

On-site parking via Brown Street car park entrance.

<< Back To Articles Page >>

Probate

In thinking about organising your affairs, you have probably heard the phrase “wills and probate” at some stage. Most people have a fair understanding about wills – what they are, how you make one, etc. But what about probate? Do you know what it is and how it works? Do you understand the relationship between the will and the probate? If not…read on.

What is Probate ?

Probate is the grant of official approval from the Court that certain formal requirements have been met in relation to a will. Therefore, while the “will” is the actual document containing the last wishes of a deceased person, “probate” is the legal authority granted by a court allowing those wishes to be carried out. The granting of probate is usually a formality and the grant is called “Probate in Common Form”.

A number of formalities must be satisfied before probate will be granted.

• A will must be the last will of the deceased.

• The person named as the Deceased must be in fact dead.

• The executor must be authorised to collect assets from persons/body holding them.

Probate can be revoked if the will is proven to be not the last will made by the deceased or if any other defects are found in the process. Therefore, even if all seems straightforward, the best course for any would-be executor is to seek legal advice to ensure that all legal bases are covered before proceeding.

Generally, a Registrar performs the process rather than a Judge and if you are the executor, you won't have to go to court unless there is a dispute about the will. However, if there is a dispute, the process is not as straightforward and probate is granted in a different form which is called "probate in solemn form".

How is probate granted if there is a dispute about a will?

The answer is: it depends. It depends on when the dispute arises. Basically, a dispute can arise before the granting of probate, or after it has been granted.

What if there is a dispute before probate is granted?

If concerns exist about a will before the granting of probate, a Caveat can be lodged with the Supreme Court which prevents probate being granted until certain conditions are satisfied. There are three types of Caveat:

1. Caveats seeking proof of the will in solemn form: used where there are concerns about forgery or doubts about whether the will was properly signed and sealed.

2. General caveats: Used where doubts arise about the will regarding:

• the testator's capacity to make the will;

• the identity of the intended beneficiary;

• the testator's understanding of the content of the will or its effect;

• whether the deceased acted under duress or undue influence in making the will;

• questions of forgery.

3. Caveats forbidding grants in respect of informal documents: The Court has the power to treat informal documents as wills even if they don't meet all the strict criteria. This type of caveat prevents a court from making such a grant without first hearing from the caveator regarding whether the informal documents should be granted validity.

If a Caveat is lodged, this does not necessarily mean probate will not be granted. All that it means is that the Court will examine the circumstances surrounding this will more thoroughly than normal, and if satisfied will issue then issue grant – although the grant will now be in solemn form.

What if there is a dispute after probate is granted?

If concerns arise after probate is granted, the grant can be challenged. This is what is generally referred to as challenging a will. There are two main avenues here:

(1) Family Provision Act 1982 (NSW): The Court may order that provision out of the estate be made for a person's maintenance education or advancement in life, but only if t is satisfied that the person applying is an "eligible person" (eg, immediate family or person in a domestic relationship with the deceased).

(2) Revocation: An application can to the Probate Division of the Supreme Court to revoke the grant of probate. However, this is extremely complicated and rarely granted by the court.

It's clear that numerous requirements must be fulfilled in order to successfully challenge a grant of probate. The Family Provision Act 1982 (NSW), the Property (Relationships) Act 1984 (NSW), the Wills, Probate and Administration Act 1898 (NSW) and the Supreme Court Rules 1970 (NSW) all contain different parts of the legal jigsaw. The Court's discretion to grant an application in these circumstances is not unrestricted. Therefore, care should be taken with these matters, and anyone considering making such an application should seek expert legal advice.

Conclusion

So, although the granting of probate usually involves more of a process than a contest, this process is not something that should be entered into lightly. You must be sure of the formalities and technicalities, as well as be prepared if any disputes do arise. Therefore, there is no better option than to entrust a suitable legal adviser to assist you with matters of probate.

<< Back To Articles Page >>

Back to Top