An “Uncontested Application” requires expert legal advice from a lawyer who deals in Estate Litigation.
When a person dies, there is a legal process that needs to be followed to allow their assets and liabilities to be administered. This process is referred to as a Grant of Probate and it requires the making of a Probate Application to the Supreme Court of New South Wales.
The person who makes the Probate Application, is the Executor named in the Will of the deceased and the application must include the Will of the deceased, a list of the assets and liabilities of the deceased. Other documentation such as the death certificate and an Affidavit sworn by the Executor must also be included.
In addition, the Executor must publish a notice 14 days before filing the Probate Application of their intention to apply for a Grant of Probate. The purpose of this notice is to make sure any creditors and people who may wish to challenge the Will have an opportunity to act.
A Probate Application that is not opposed, is referred to as an “Uncontested Application” or a Grant in Common Form. Conversely a Probate Application that is challenged will, once the challenge is resolved, be referred to as a Grant in Solemn Form.
The issue that can arise with “Uncontested Applications” is that, they are open to be challenged on certain grounds, after the Grant in Common Form has been made by the Court. If an “Uncontested Application” is challenged, then the Court has the ability, to revoke the Grant in Common Form.
A recent example of an application to revoke a Grant in Common Form, was shown in the Supreme Court of New South Wales decision, In Estate Sue . The application centred on whether the Will that had been Granted Probate was invalid, because of a lack of testamentary capacity of the deceased at the time they made the Will. Testamentary capacity refers to the person making their Will, understanding the nature and effect of making their Will and that they were of sound mind at the time of making their Will.
The deceased had reduced the amount her daughter was to inherit as shown in an earlier Will and the Court investigated whether the deceased was suffering a delusional disorder at the time, of making her latest Will. The Court considered evidence left by the deceased explaining that her daughter was not a good daughter and the reason for reducing her inheritance. The Court then considered evidence from family and friends that the deceased had a difficult personality and the relationship between the deceased and her daughter, had been fraught with unpleasant confrontation since her daughter was 7 years old. In addition, medical evidence showed that the deceased had a well-established delusional disorder at the time of the making her latest Will.
The Court found that at the time the deceased made her latest Will she lacked testamentary capacity and revoked the Grant in Common Form allowing the deceased’s earlier Will to be accepted as the last valid Will of the deceased.
If you need advice on what and how to obtain a Grant of Probate you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on how to successfully obtain a Grant of Probate. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.
Call today for an appointment on 9221 2779, offices conveniently located in Sydney, CBD and close to public transport.