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Common form delays:

Before the Grant of Probate is made, sometimes the Probate Registry will requisition information about a will if they have concerns. Errors in the will, such as an incorrect name are not usually fatal to a common form application. These can be dealt with by filing affidavits to explain the error.

Similarly, if a signature is shaky, or a death certificate indicates a person had dementia at the time they signed the will, an affidavit can be obtained from a witness to the will confirming that the person understood and had knowledge of the will. Sometimes a requisition will be issued if the signatures are signed in different color ink, for the executor to confirm the witnesses were all present at the same time.

‍Serious problems:

‍A document deemed not be be executed in accordance with the requirements of section 8 of the Succession Act 2023, an informal or an un-executed document said to be a will cannot be dealt with in common form. These documents must first be taken to the Court by originating application for a finding that a Grant of Probate should be issued by the Probate Registry. This is significantly more expensive and time consuming than a common form application.

The Court must be satisfied both that the document presented to them in the application expresses the testamentary intentions of the deceased and that the deceased intended that document to constitute their will.

‍Drafts, instructions and notes are unlikely to constitute a will to be admitted to probate. The problem, and the cost and delay of a contested application can all be solved by executing a will pursuant to section 8 of the Succession Act.

‍If there are serious doubts, or if someone contests the fact that a person had capacity to undertake a will the matter cannot proceed in common form and must be proved in solemn form.

‍These problems can again be mitigated by using an independent solicitor, obtaining contemporaneous medical evidence of capacity for an elderly or ill testator, and keeping a file note of the instructions and of the will being read over and explained:

‍Where no executor is able or willing to act, the answer is a grant of administration with the will annexed or a passing over.

‍All of these issues can cause significant cost and delay, and all of them can be solved by undertaking proper succession planning.

‍See also:

In the Estate of Schwartzkopff [2006] SASC 131

‍Hatsatouris v Hatsatouris [2001] NSWCA 408

In the Estate of Sugars [2021] SASC 62

Hall v Carney[2012] SASCFC 76

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