‍Probate is in essence, an order of the Supreme Court. The order is attached to a person’s will and confirms that the person who wrote the will (“the testator”) is dead, and the person who is named as executor is authorised to administer the Estate.

‍Technically, Probate is a grant made in the exercise of the Supreme Court’s testamentary jurisdiction, which the Court holds under s 18 of the Supreme Court Act 1935 (SA) and the Succession Act 2023 (SA). The grant proves the will and authorises the executor named in it to administer the estate.

‍Probate is needed because the executor’s authority to get in the assets, discharge the liabilities and distribute the estate is established by the grant, and because asset holders (such as banks and the Lands Title Office) will ordinarily deal with the estate only when there is a grant of Probate. The duty to collect the estate and administer it according to law is imposed by Succession Act 2023 (SA) s 81, and the grant is the instrument that enables the executor to perform it.

‍A grant of Probate is usually obtained by a non-contentious application to the Probate Registry of the Supreme Court known as a “common form” application. The executor named in the will applies and the application must be accompanied by a statement of the assets and liabilities of the estate (Succession Act 2023 (SA) s 71) and proof of death, being the person’s death certificate.

‍Probate will usually be granted if the will is in writing and it is signed by the testator before two witnesses present at the same time who also sign the will.

‍A will regular on its face and duly executed is presumed to have been made by a capable testator who knew and approved its contents, and it is on that presumption that a grant in common form issues:

‍A common form application is as the name suggests, the most common form of probate, it is non-contentious, made administratively, and revocable. The other form of probate is a grant in solemn form, which issues only after a contested probate action. Solemn form grants are only made when there is some kind of claim made against the will  in which the Court rules on validity after evidence.

‍See also:

‍ Hall v Carney [2012] SASCFC 76

‍Bailey v Bailey [1924] HCA 21

‍