Probate News
Court’s processing times as at 10 November 2022
a. The Court is assessing applications for standard probate, reseal, letters of administration filed during the period 5 September to 9 September 2022.
b. The Court is reviewing the answers to requisitions (requiring further information on applications) filed during the period 5 September to 9 September 2022.
c. The Court is assessing complex applications (for example, informal wills, copies of wills, presumption of death, limited purpose grants, or administration applications not being made by the next of kin) filed during the period 31 August to 3 September 2022.
d. The Court will not expedite replies to requisitions by executors/administrators who sell real estate without having first obtained a grant.
There are more than usual delays to obtain a grant from the Court, given the availability of Registrars to assess the application and more estates are becoming complex.
Grants of probate of informal wills
Some will-makers were not able to satisfy the statutory requirements for a valid will due to COVID-19 restrictions in 2020 and 2021. For example, some will-makers could not get two witnesses for their will as they were in lockdown or were not technically proficient to use video conferencing such as Zoom or Teams for the purpose of making a new will. Instead, a will-maker signed a testamentary document with intent that it formed part of their last will (known as an informal will).
When an executor seeks grant of probate of an informal will, the Court will require evidence that the deceased intended the document to form part of their will and in addition, notice must be given to all persons affected by the Court’s declaration if it were to be satisfied that the deceased intended that document to form part of their will. The affected persons are the beneficiaries under an earlier will or the persons entitled to the distribution of the estate under intestacy if there is no earlier will. This type of application can cause delays for the estate administration and the probate proceedings could become contested if an affected person challenges the evidence behind the informal will and seeks a grant of probate of an earlier will which meets the statutory requirements for a valid will (or a grant of administration if there is no earlier will).
Deceased person who died overseas
Another example, where a person who was domiciled (their permanent home) overseas as at the date of death and left assets in NSW, consideration must be made to the requirements of the law of the domicile as to the validity of any will made by the deceased or as to the persons who may be entitled on distribution of the estate (if there is no will). In addition, if a person died overseas, the Court requires evidence of a person who knew the deceased and saw the body in addition to the English translated copy of the Death certificate.
The above are examples of how an estate can be complex requiring technical attention to the legal issues. It is necessary to carefully address these issues in the application for a grant to avoid the Court issuing any requisition requiring further information and as such can cause further delays with the estate administration.
Please contact our Adelaide Ryan, Senior Associate, if you require assistance with an application for a grant.
