Application for Certificate of Grant (Exemplification)

In New South Wales, in order to obtain a copy of a grant of Probate or a copy of the deceased’s will, an Application for Certificate of Grant (Exemplification) must be filed with the Supreme Court along with a set fee.

Application for a Statutory Will

In New South Wales, Palmer J provided an excellent foundation for the application of the statutory will provisions in his landmark decision in Re Fenwick; Application of Fenwick & Re Charles [2009] NSWSC 530 … Palmer J distinguished between three categories of people on whose behalf an application for a statutory will might be made: – adults with prior testamentary capacity (‘lost capacity’ cases) – persons who have never obtained testamentary capacity (‘nil capacity’ cases) – minors with prior testamentary capacity (‘pre-empted capacity’ cases Extract from Speech by Rosalind F Croucher, Succession Law Conference, Blue Mountains Annual Law Conference, 17 September 2011

Executors and Probate

“Where the will comprises several testamentary documents, each appointing executors or a sole executor, probate is granted to all the executors jointly, but where the documents each dealt with different property, probate has been granted to different executors each in respect of different property …” Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales at [41.24].

A plaintiff’s affidavit in a contested will case

An affidavit is the equivalent of sworn or affirmed evidence in a court of law. A plaintiff’s affidavit should address the matters outlined in section 60 of the Succession Act 2006 (NSW).

The effect of section 94(3) Succession Act 2006 (NSW) on a contested will application

No person who may have made or may be entitled to make an application … is entitled to bring an action against the legal representative of the estate of a deceased person because the legal representative has distributed any part of the estate if the distribution was properly made … after the person (being of full legal capacity) has notified the legal representative in writing that the person either: (a) consents to the distribution, or (b) does not intend to make any application … that would affect the proposed distribution.

Reasonable diligence and honest judgment by an administrator

An administrator is not guilty of wilful neglect or default and is not liable for losses sustained to the estate if he or she, having exercised reasonable diligence makes an honest judgment, that it is in the interests of the estate to delay collecting debts due to the deceased, as distinct from merely standing by and doing nothing at all to collect the debts (Re Owens; Jones v Owens (1882) 47 LT 61). In the same way an administrator is not chargeable if, after the exercise of due diligence he or she forms an honest judgment that the deceased owed a debt and pays the same, rather than defending the claim … McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470 White J at 55.

Estate administration and debts

Under s 49(2) of the Trustee Act 1925 (NSW) an executor or administrator may pay, allow or compromise any debt or claim on any evidence the administrator thinks sufficient. In making that judgment, an executor or administrator must exercise his or her duties of honesty and reasonable care: McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470 White J at 54.

Death by violent conduct

where a person who would otherwise obtain a benefit by the death of another, has brought about that other’s death by violent means, he shall not be entitled to take that benefit: Troja v Troja (1994) 33 NSWLR 269 Meagher JA at 299.

Estrangement and contested wills cases

The more recent authorities have held that a State of a estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or testatrix to provide for the claimant. In Palmer v Dolman [2005] NSWCA 361 Ipp JA, after a review of the cases, observed (at [110] that: ‘… the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’… Foley v Ellis [2008] NSWCA 288 at 101.

The court’s power to rectify a will

Section 27 of the Succession Act 2006 (NSW) provides the court may make an order to rectify a will if satisfied the will does not carry out the testator’s intentions. An application must be made within 12 months from the date of death of the testator.


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