When someone lodges a probate application with the Supreme Court of NSW, there are exacting requirements for it to be complete and accurate. If the application is incomplete or inaccurate, the court will issue a probate requisition seeking additional information, documentation, or that the application be corrected. The process of obtaining probate of a will is delayed until the requisition is satisfied, and may increase the fees payable to the Court to obtain probate. This article explains the purpose of a probate requisition and highlights some common mistakes made in probate applications that lead to requisitions.
What is probate?
An executor appointed by a will or administrator of a will applies to the probate registry of the Supreme Court for a grant of probate to administer a deceased estate. A grant of probate verifies that the will is the most recent, valid testamentary instructions of the deceased. The process of applying for a grant can be complicated and a necessary requirement can be easily overlooked or a small mistake made. Even solicitors occasionally receive a requisition when seeking a grant of probate.
What is a probate requisition?
If a probate application is inaccurate, there can be considerable delays. Sometimes the Supreme Court issues a requisition which notifies the applicant that they have not fulfilled at least one of the requirements of the application. A requisition forces the executor to file further documents with the court or amend existing documentation. Even if the forms are perfectly filled out, a requisition may still be issued if the Court needs further information to clarify some aspect of the application. For example, a requisition may be issued simply because a will has an unexplained mark. Even a staple mark in the corner of a will may prompt a requisition because the court is concerned that there are pages missing.
A typical requisition is a one-page notice, which notes the case number and title of the application, and asks the recipient to answer specific requisition/s. A copy of the requisition is filed with answers to the requisition/s. Fees may be payable when lodging additional documentation.
You cannot ask the Court to further explain a requisition. In the 2001 case of Re Estate of Max Frederick Dippert, the Court reprimanded the solicitors for answering a requisition from the Registrar with a four-page request for further and better particulars on the requisition. The Court made it clear that this was not the appropriate way to respond to a requisition. The Court emphasised that if an applicant or solicitor is unsure of how to respond to a requisition, they need to consult counsel, not “interrogate” the Court.
How to avoid a probate requisition
If you are unfamiliar with the process of obtaining a grant of probate, it can be difficult to correctly complete the documentation. We highly recommend that you consult an experienced solicitor to avoid mistakes. However, if you wish to apply without obtaining legal assistance, adherence to the following steps will limit the probability of requisitions:
- Locate the original will and death certificate and check them for any issues which could delay probate. Originals (not copies) must be submitted for probate. If there are any issues with the original will, such as damage, provide a sworn affidavit with a detailed, formal explanation of how the damage occurred.
- Exactly follow the required wording of the application to avoid miscommunication.
- Check that the names (and aliases) and contact details of the deceased, beneficiaries and executors are correct and complete. A testator may use an anglicised version of their name on some documents and their full legal name on land titles and death certificates.
- Check that the dates on the application match the date of the will and of the death certificate.
- Consider whether there are any unusual circumstances involved in the death of the testator. For instance, if the deceased died overseas, the affidavit should detail how the body was identified, etc.
Applying for a grant of probate can be intimidating, and small mistakes and omissions can be costly and time-consuming. We can help you make a probate application so that the process is as smooth as possible. We can also help if you receive a probate requisition. If you have been appointed as an executor of a will, contact us for advice and support.