Obtaining a Grant of Representation – Some Practical Tips

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

Small Estates

Simplified procedures for taking out a grant exist for estates valued under $150,000 where the Public Trustee and Guardian are involved: ss 87C ff Administration and Probate Act.

The Will; and Searching for the Will

A. Lost Will

If you believe that the testator may have made a will, but you are not sure, or if you know there was a will but you cannot find it, you should consult a professional person such as a solicitor or the Public Trustee and Guardian. When searching for a will, enquiries should be made with the deceased's bank, solicitor, insurance company and the ACT Law Society. The Public Trustee and Guardian and the Supreme Court should also be checked. If no will is found, enquiries should be made in places in which the deceased previously lived.

B. Existing Wills

If you are going to administer the estate yourself, and you have the testator's last will in your possession, you should examine the will to determine whether:

• a beneficiary or the spouse of a beneficiary is a witness to the will;
• it is duly executed by the testator and two witnesses;
• beneficiaries and executors are accurately described and identified, and if it is generally clear;
• an executor has been named in the will;
• the executor is identified and willing to act. If so, they will be required to sign the application for probate and other documents; and
• its provisions create no legal problems.

If your examination of the will reveals any problems, you should consult a suitably qualified legal professional.

C. Informal Wills

Since the Supreme Court has the power to admit to probate documents which do not comply with the formal requirements for wills, persons applying for a grant are required to produce to the Registrar informal documents, which may have been intended by the deceased to be testamentary. Such documents may include draft wills, letters and instructions for wills: s 11A Wills Act.

D. Particulars of Death

The person applying for the grant will have to get the death certificate. The death certificate is not available until after the funeral and will be issued even where there is a coronial inquest pending (see also Death Certificate).

E. Did the Deceased die Intestate?

The person administering the estate will have to identify next of kin, and search for any applicable:

• wills (including informal testamentary documents);
• marriage certificates; and
• birth certificates.

Application for a Grant

Once it is decided that a grant is necessary, the major effort is directed at getting that grant. However, proper steps must be taken to protect assets as necessary even before a grant is made.

A. Grant of Probate

Documents required

When 14 days have elapsed after the publication of notice of the intended application (r 3006 Court Procedures Rules and approved form 3.7), the documents you must file in support of the application are:

Document		Court Procedures Rules Part 3.1	Form(s)
1	Originating Application - probate	r 3005	Form 3.1
2	Affidavit of Applicant for Probate with supporting documents:	r 3010	Form 3.11
	Death Certificate;
	Informal will of which probate is not being sought;
	Tear Sheet (evidence of Notice of Intended Application);	rr 3006, 3010	Form 3.7
	Summary of responses to Notice of Intended Application;	r 3010
	Reasons for delay – if applying more than six months after death;	r 3010(1)(e)
	Certificate evidence (Birth, Marriage); and
	Statement of Assets (Inventory).	r 3010(6)(c), 3021(3)	Annexure to Form 3.11
3	Affidavit of Search	r 3011	Form 3.14
4	Affidavit of Attesting Witness, if necessary	rr 3013 & 3030-3035
5	Original will of deceased
6	Grant of Probate (in duplicate)	r 3005	Form 3.4

The Statement of Assets (that is, the inventory) (required by r 3010(6)(c) Court Procedures Rules) is normally annexed to the Affidavit of the Applicant.

Preparation of the documents required for a grant of probate

For a grant of probate, the applicant must collect and prepare the documents needed for an application (listed above).

(a) Originating Application

This must be completed and signed by the applicant for probate or their solicitor.

(b) Affidavit of the Applicant for Probate

In the Affidavit of the Applicant the applicant identifies the will (normally the applicant identifies the signature and handwriting of the testator), asserts that the applicant is the person named in the will, that the applicant is over 18 years old and other matters detailed in the rr 3005, 3010 (3)(b) ACT Court Procedures Rules.

(c) Death Certificate

The original certificate of death must be lodged with the court for sighting by the Registrar, but a certified copy of the certificate may be annexed to the affidavit. The Registrar will return the original once sighted. This also applies to any other certificates which may need to be annexed to the Applicant's affidavit.

If there are problems with the validity or the text of the will, other affidavits will certainly be required.

(d) Informal will of which probate is not being sought

The rules provide that the applicant for probate must include an affidavit setting forth, if that is the case, that ‘the applicant is unaware of the existence of any document, or part of a document, (other than the will the subject of the application) purporting to embody testamentary intentions of the testator’. This is necessary because the dispensing provision in the s 11A Wills Act allows the court to admit to probate documents which embody the testamentary intentions of the testator even though that document does not comply with the proper formalities.

(e) Tear Sheet (evidence of notice of intended application).

R 3006 Court Procedures Rules requires the applicant to publish notice of intention to apply for a grant. Form 3.7 is used. You must be careful to deal accurately in the Notice with matters such as the different spellings of the testator's name, or other names they are known by, place of residence, occupation and the naming the executors in the will, because there must be no discrepancies between the Notice and the applicant's affidavit.

(f) Statement of Assets

Form 3.11 includes an annexure of Inventory of Assets. The inventory of assets should set out the gross assets of the estate. You do not include life/superannuation policies that will be paid directly to a nominated beneficiary rather than to the estate. Assets which are held jointly are noted later in the inventory.

(g) Affidavit of Search

The ‘search’ is for prior grants, for caveats against grants and for a will or later will, as the case may be. Make sure the search is after the expiry of 14 clear days from the publication of the Notice of Intended Application. The search should be done on the day of filing the application.

(h) Affidavit of Attesting Witnesses

If the will contains an inadequate attestation clause or no attestation clause, you must file affidavits from attesting witnesses. An inadequate attestation clause means one that does not correctly state the required formalities for a will, and state that those formalities were complied with: s 9 Wills Act; .

(i) Original Will of the deceased

To comply with rr 3013 and 3030-3035 Court Procedures Rules, and conform with the first paragraph of the Applicant's affidavit, you must have the applicant and witness to the applicant's affidavit sign the original will in the margin. You lodge the will as a separate document.

(j) Grant of Probate

You must prepare Form 3.4 and lodge it in duplicate; and you must annex a copy of the will to each Form 3.4: r 3005 Court Procedures Rules.

For some further practical tips on how to complete these documents see the ACT Supreme Court’s checklist.

A Court Filing Fee is payable at the time of lodging the application with the Court. The amount of the filing fee payable is determined by the gross value of the estate. For current filing fee charges pplease see the ACT Supreme Court Fees page.

B. Grant of Letters of Administration on Intestacy

Documents required

Order 72 Rule 14 of the Supreme Court of the ACT requires affidavits in accordance with Forms 3G and 3H when applying for letters of administration. In an uncontested grant for letters of administration on intestacy, the following documents are usually prepared and lodged:

	Document				Court Procedures Rules Part 3.1		Form(s)
	1	Originating Application – Letters of Administration – No will			r 3005		Form 3.3
	2	A ffidavit of Applicant for Letters of Administration – No will with supporting documents:			r 3005		Form 3.13
			Death Certificate;
			Informal will of which probate is not being sought;
			Tear Sheet (evidence of Notice of Intended Application – No will);		rr 3006, 3010		Form 3.9
			Summary of responses to Notice of Intended Application;		r 3010
			Reasons for delay – if applying more than six months after death;		r 3010(1)(e)
			Certificate evidence (Birth, Marriage); and
			Statement of Assets.		r 3010, 3021(3)		Annexure to Form 3.13
	3	Consent to Administration of Estate			r 3011		Form 3.10
	4	Administration Bond (if required by Registrar)			r 3045		Form 3.21
	5	Affidavit of Search			r 3011		Form 3.14
	6	Grant of Letters of Administration - No will in duplicate			r 3005		Form 3.6

In an application for letters of administration, the applicant will have to prove that they have the largest interest (basically, the largest share of residue) - so, original marriage and birth certificates necessary to prove relationship with the deceased will be required.

Grants of Letters of Administration generally

Bear in mind that not all grants of letters of administration are made pursuant to an intestacy. A grant of letters of administration will be made in any case where there is no executor able and willing to take a grant, for instance, letters of administration with the will annexed may be made if there is a will, but no executor able and willing to take the grant. Note that we have not provided a list of documents required for a grant of administration with the will annexed: you will be able to work them out from the lists for grants of probate and of administration.

Letters of administration while the executor remains a minor may be granted if the executor named in the will is a minor.

Getting a grant of administration is rather more complicated and more drawn out than obtaining a grant of probate. For this reason (and because an administrator may have to provide an administration bond if there are minor beneficiaries: rr 3045-3053 Court Procedures Rules. The bond may be dispensed with by the Registrar: r 3046 Court Procedures Rules. Executors never have to provide a bond) letters of administration incur higher administration costs.

For some practical tips on how to complete these documentssee the ACT Supreme Court’s checklist.

A Court Filing Fee is payable at the time of lodging the application with the Court. The amount of the filing fee payable is determined based on the amount of the gross value of the estate. For current filing fee charges please see the ACT Supreme Court Fees page.

Procedure for a Grant

When an application is lodged with the Registrar it is examined in the Registrar's office to see whether it complies with the requirements of the Administration and Probate Act and the Court Procedures Rules. If the application is satisfactory, it is sealed and dated. If not, then further information is ‘requisitioned’, and finally, when all is correct, it is stamped and dated. (A grant thus made by the Registrar is called a grant ‘in common form’.) The Registrar may refuse to make the grant requested, giving reasons in writing, and the applicant then makes the application to the Supreme Court - r 3113 Court Procedures Rules. (A grant made after oral evidence before the Supreme Court is called a grant ‘in solemn form’.)

The grant of probate or administration is then made and numbered and the seal of the court is affixed.