When someone close to you dies, you may also need to deal with their estate. If you are named as executor in the will, one of your first questions may be whether you need a grant of probate, and what happens if someone disputes the will.

We help many clients through complicated deceased estate matters, including applications for probate. This article explains what a grant of probate is, when you are likely to need one, and the difference between probate in common form and probate in solemn form.

What is a grant of probate?

A grant of probate is an order made by the Supreme Court of NSW after a person dies leaving a valid will. It confirms that the Court accepts the will as the deceased’s last valid will. It also authorises the executor to:

• collect the deceased’s assets
• pay the deceased’s debts and taxes
• distribute the remaining estate to the beneficiaries.

If a person dies without a valid will, probate is not available. A different grant, called letters of administration, is usually needed instead.

When is probate required?

Probate is commonly required where the deceased owned real estate in their sole name, or held substantial bank accounts, shares or investments. Banks and other institutions often need to see a grant before they will release assets to the executor.

Probate is usually unnecessary for property the deceased owned as a joint tenant, because that property passes automatically to the surviving joint owner. This is different from property owned as tenants in common. A share held as a tenant in common forms part of the deceased’s estate, so probate may still be needed to deal with it.

For example, if Maria dies leaving a house in her sole name and appoints her daughter as executor, her daughter will generally need probate before she can sell or transfer the house.

What is probate in common form?

Probate in common form is the usual type of grant. It is appropriate where:

• nobody disputes the will
• no probate caveat has been lodged
• the original will is available and appears properly signed
• there are no serious concerns about the deceased’s mental capacity or possible undue influence.

The executor files the will, death certificate and supporting documents with the Court. If everything is in order, the application is generally decided administratively, without a hearing.

For example, David leaves a straightforward will dividing his estate equally among his children. Everyone accepts the will, and there are no concerns about how it was prepared or signed. Probate in common form would ordinarily be appropriate.

Can a common-form grant be challenged later?

Yes. A common-form grant is legally effective, but it may later be revoked if someone successfully challenges the will. This could happen, for example, if a later will is discovered, or if credible evidence shows that David lacked capacity when he signed his will.

What is probate in solemn form?

Probate in solemn form involves a formal judicial decision about whether the will is valid, usually following contested court proceedings. It may be appropriate where there is a substantial dispute about whether the deceased:

• had the mental capacity to make the will
• knew and approved of the will’s contents
• signed the will properly
• was subjected to undue influence.

It may also be appropriate where forgery is alleged, or where there are competing wills.

For example, suppose David’s final will unexpectedly leaves his entire estate to a new carer, even though an earlier will benefited his children. If the children allege that David had advanced dementia or was pressured into signing, the executor may need to prove the will in solemn form.

How do solemn-form proceedings work?

In solemn-form proceedings, interested parties can give evidence and challenge the evidence relied on by others. A judge then decides whether the will is valid.

A solemn-form grant provides greater finality and is significantly harder to overturn than a common-form grant. However, it may still be reopened in exceptional circumstances, such as fraud or the discovery of a later valid will.

Is disputing a will the same as a family provision claim?

No. A dispute about probate is about whether the will itself is valid. A family provision claim under the Succession Act 2006 (NSW) accepts that the will is valid, but asks the Court to order more provision from the estate for an eligible person who was not adequately provided for. In NSW, a family provision claim must generally be made within 12 months of the date of death.

Some estates involve both issues, so it is important to get advice early about which applies to your situation.

Common form or solemn form: which applies to you?

In short, probate in common form is ordinarily appropriate for an uncontested estate. Probate in solemn form is used where the validity of the will is genuinely disputed, or where a binding judicial decision is required.

If you are an executor, or you have concerns about how a will was made, the right approach depends on your circumstances. Early advice can help you understand your obligations, protect the estate and avoid unnecessary delay or cost.

Get guidance you can trust

Whether you are applying for probate for the first time or dealing with a disputed will, our experienced team can guide you through each step and help make a difficult process more manageable.