​Probate Information for Legal Practitioners

This section includes information about more complex grant applications, originating applications, probate caveats, probate subpoenas, renunciation applications and will deposits.

Practice Notes made pursuant to the Probate Rules can also be found here.

On this page:

Complex Grant Applications

This section includes information on more complex grant applications.

Probate

Why Is an Executor Not Applying for Probate?

An Executor Named in the Will Has Died

It is only necessary to provide details of a deceased executor who is entitled in the same or a higher degree of priority to the applicant. The order of priority is set out in Rule 33 of the Proba​te Rules.

Leave to Be Reserved

'Leave reserved' is the description used on the grant when one of more of the executors as described in the will do not wish to apply for probate. They are considered a non-'proving executor' whereas the executor who signs all the documents and to whom the grant is issued to is considered a 'proving executor'. 
It is not necessary for all of the executors named in the Will to apply for probate. Any one or more may apply. The Court will not wait for all executors to apply before granting probate.

Where there is one or more executors who have not applied for probate and leave has been reserved to them, they can make an application at a later date if they wish too.
The Executor Has Renounced

An executor as described in the will is not obliged to apply for a grant of probate. If they wish to they can renounce their right by lodging the appropriate form (see below) on CourtSA.

How Do Does My Client Renounce?

The relevant form (see below) should be completed before you login on to CourtSA:

The completed form must be signed before being scanned and uploaded with your CourtSA application form. Be aware that the original Will needs to be sent (post or drop it off at the Registry) to the Court when you lodge a renunciation.

Click here for more infor​mation about how to lodge the form.

The Executor Is Unable to Act

If an executor named in the Will (at the same or a higher level of priority as the applicant) is unable to act, evidence of why s/he cannot act is required.

Where the inability is on medical grounds, a copy of:

  • a brief letter from a treating doctor; or
  • an order made by the Guardianship Board or SACAT

should be annexed to an affidavit of the applicant.

Where the inability is for other reasons, those reasons should be stated in an affidavit and any supporting documentation annexed. The affidavit(s) should be scanned and uploaded.

Click he​re for more information about how to lodge the affidavit.

Probate in Solemn Form

In certain circumstances the Court makes an order that probate must issue in solemn form.

Where that order has been made, you will need to:

  • make an application for a grant of probate; and
  • upload a copy of the sealed order to your application.

Click he​re for more information about how to upload the order.

Double Probate

Double probate is issued when an executor to whom leave has been reserved in a previous grant applies for a grant in the same estate.

An application for a grant of probate will need to be made.

When completing the CourtSA Grant Application form:

Click h​ere for more information about how to upload the oath.


Letters of Administration and Re-Seals

Oath of Administrator

Use Fo​rm​ 42 - Oath of administrator with the Will annexed where:

  • there is no executor named in the Will; or
  • the executor named in the Will died without obtaining a grant of probate.

Use Form 43 - Oath of administrator with the Will annexed de bonis non​ where:

  • probate was granted to the executor appointed in the Will;
  • the executor died intestate, or the chain of executorship was broken in some other way; and
  • part of the estate of the deceased has not been administered

Note that the assets and liabilities section of the CourtSA application form should only include assets and liabilities that have not been administered.

Use Fo​rm 44 - Oath of administrator where:

  • the deceased died without leaving a Will.

Use Fo​rm 45 - Oath of administrator de bonis non where:

  • letters of administration were granted to someone who has since died without completing the administration of the estate; and
  • you are a person who is entitled to a share of the estate.

For example:

  • the deceased died without leaving a Will;
  • letters of administration were granted to the widow/er of the deceased; and
  • you are a son or daughter of the deceased.

Note that the assets and liabilities section of the CourtSA application form should only include assets and liabilities that have not been administered.

Use For​m 46 - Oath of administrator pendent lite where:

  • the Court has made an order that letters of administration of the estate of the deceased be granted to you until the validity of the Will of the deceased is decided.

The oath and Court order should be uploaded as one document.

Please scan the affidavit before stapling it. If you do remove staples for scanning, you should upload another affidavit explaining that.

Applications on Behalf of Persons Entitled

Power of Attorney

If you are the attorney of a person who is entitled to apply for probate, letters of administration or re-sealing of a grant you may be able to make the application on behalf of that person.

The power of attorney must contain a provision to this effect:

“I authorise my attorney to apply for and obtain a grant of administration of the estate of GH deceased for my use and benefit and until further representation is granted.”

In the Estate of Dudley [2013] SASC 22

A form of power of attorney is given in For​m 59 - Power of attorney. You should note that there are restrictions on the use of powers of attorney (see Rule 43 of the Pro​bate Rules).

The power of attorney should be scanned and uploaded in the Document Details section at the end of the CourtSA application form. DO NOT remove any staple before scanning.

Alternatively, the power of attorney can be uploaded to your new case after you have submitted your application.

Go to the My Cases section of CourtSA to find your existing cases.

Guardian

Administration may be granted to the guardian of a minor in the circumstances set out in Rule 44 of the Pro​bate Rules.

Where a person entitled to a grant is incapable of managing her or her affairs by reason of mental or physical incapacity, Rule 46 of the Pro​bate Rules sets out the circumstances in which administration may be granted to another person.

Do not proceed with the application for a grant until an order has been made under Rule 44 or Rule 46 of the Probate Rules.

You will need to make an application for the order using the CourtSA Originating Application form.

Person Authorised

Rule 50(1) of the Prob​ate Rules allows for an application for the re-sealing of a grant made by another Court to be made by a legal practitioner authorised in writing to apply on behalf of the executor or administrator.

The legal practitioner must be admitted to practice in South Australia and hold a current practicing certificate.

The authority should name the individual legal practitioner so authorised.

Click he​re for more information about how to lodge the letter of authority and supporting documents.

Other Authority to Make the Application

If you believe you have authority to make an application, you should provide a letter:

  • stating what authority is claimed and identifying the source of that authority; and
  • referring to any relevant provision of any statute or Rules.

You must also attach to the letter copies of any documents that support the claim for authority.

Click he​re for more information about how to lodge the letter and supporting documents.

Re-Sealing Grants

A re-seal is often necessary when a person dies leaving assets in more than one jurisdiction. Once a grant is re-sealed in South Australia, it is as effective as if the original grant had been obtained in South Australia. A grant made by a Court outside South Australia does not carry the authority to deal with assets within South Australia.

Part 2 Division 5 of the Administration and Probate Act 1919 permits the re-sealing of grants that are made in Australian states and territories and specified overseas jurisdictions.

How to Apply for a Re-Seal of a Grant

An application for re-seal of a grant is made using the CourtSA Grant Application form.

An application for the re-sealing of a grant may be made by:

  • the executor or administrator;
  • a legal practitioner on behalf of the executor or administrator, or
  • a person duly authorised by power of attorney.

The minimum documentation you need to complete the form is:

  • the original grant with the Will attached (if any);
  • a court sealed and certified copy of the grant with the Will attached (if any); or
  • the original exemplification;

AND

  • a scanned certified copy of the original grant with the Will attached (if any);
  • a scanned certified copy of the court sealed and certified copy of the grant with the Will attached (if any); or
  • a scanned certified copy of the original exemplification.

After lodging your re-seal application, CourtSA will automatically create an Original Grant Coversheet. Place either the original grant with the Will attached (if any), a sealed and certified copy of the grant with the Will attached (if any) or the original exemplification in the white A4 envelope and affix the Original Grant Coversheet.

Lodge the original grant or exemplification either in person, or by registered post, to the Probate Registry at 241/259 Sir Samuel Way Building, Victoria Square, Adelaide SA 5000.

What Documents Will Be Re-sealed

Re-sealing grants can be very complicated. If you are representing yourself it is recommended that you seek legal advice.

The document submitted for re-sealing must bear the original seal of the issuing Court on every page.

Please note that the Court will not re-seal a grant that it would not have made - see In the Estate of Tamburin [2014] SASC 58. That includes a grant issued in a style that this Court would not use (eg “also known as”).

Do not remove staples to scan or copy any document!

If it appears that the document may have been tampered with in any way (eg removal of staples) it will not be accepted for re-sealing unless the state of the document can be satisfactorily accounted for by way of affidavit of plight and condition. For an affidavit of plight and condition, complete Form 02. If it is required, such an affidavit should be uploaded with the application.

Click her​e for more information about how to upload the affidavit.

Other jurisdictions can re-seal grants issued by CourtSA.

Other Probate Applications

Originating Applications

Testamentary summonses (previously Forms 34, 34A, 34B and 34C) and other applications under a particular Rule or Act, including applications made pursuant to section 9 of the Public Trustee Act 1995, are now called originating applications. These applications are made through CourtSA.

Rule 64 - Grants under Section 12(2) of the Wills Act 1936

Section 12 of the Wills Act 1936 is concerned with the validity of a will. Section 8 of the Wills Act 1936 sets out the requirements as to writing and the execution of a will. If these requirements are not met an applicant can apply for an order by an originating application seeking to have the document admitted to probate as the last will of the deceased person. Before the order can be made the applicant must satisfy the Court that (1) the document expresses the testamentary intentions of the deceased person and (2) the deceased person intended the document to constitute his or her will.

Rule 65 - Revocation of a document under Section 12(3) of the Wills Act 1936

If the Court is satisfied that a document that has not been executed with the formalities required by the Wills Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.

Rule 66 - Application for rectification of a will

Section 25AA of the Wills Act 1936 gives the Court the power to rectify a will that does not accurately reflect the testamentary intentions of a deceased person. Upon an originating application by the applicant and being satisfied as to the testator's testamentary intentions the Court may order that the will be rectified so as to give proper expression to those intentions.

Rule 67 - Application for omission of words of an offensive or libellous nature from grant

Rule 68 - Application for permission to swear death

Rule 69 - Grants in respect of copies of wills

An application can be made to the Court for an order admitting to proof a will contained in a copy, a completed draft, a reconstruction or the subject of other evidence of its contents where the original will is not available. Where a will is not available owing to its being retained by a foreign court a duly authenticated copy of the will may be admitted to proof without such order as aforesaid.

Rule 70 - Grants in respect of nuncupative wills

Rule 71 - Grants of special administration

Rule 72 - Grants pendente lite

Once an order is made on a CourtSA Originating Application, a CourtSA Grant Application can then be made.

Probate Caveats

A probate caveat prevents the proposed executors or administrators from getting permission to administer the estate assets without the caveator having an opportunity to oppose the administration. You will need to use the CourtSA Caveat Application form.

CourtSA will generate a certificate of caveat automatically once you have completed all required sections of the CourtSA Caveat Application form. You can then view the certificate in CourtSA and print it if required.

Caveats will expire 6 months from their date of issue, unless one of the following occurs:

  • the caveat is withdrawn;
  • a warning to caveat is lodged;
  • a citation is lodged; or
  • the caveat is removed by an Examining Officer.

If a warning to caveat has been filed, and the caveator does not respond to the warning, an order may be made that the caveat ceases.

All actions on caveat cases, including renewals, withdrawals, warnings, appearances and citations are performed in CourtSA.

How Do I Renew a Caveat?

Fourteen calendar days prior to the expiry date, CourtSA will send an email notification to the caveator (or their legal practitioner if represented) reminding the caveator that the caveat is about to expire. The notification will include the date the caveat is due to expire and a link to CourtSA.

The caveator can renew the caveat by opening the case in CourtSA and using the "Renew Caveat" button. There is no fee to renew a caveat. The renewal application must be made prior to the expiration of the caveat.

After the caveat expires a fresh caveat application will need be made and the fee paid.

How Do I Withdraw a Caveat?

To withdraw a caveat, the caveator simply selects the "Withdraw Caveat" button in the case and answers the questions. A fee is payable. The caveator and other relevant parties will be notified that the caveat has been withdrawn and sent a link to CourtSA to view the withdrawal of caveat document.

The caveator cannot withdraw a caveat once an appearance to caveat is filed. To withdraw the caveat where an appearance to caveat has been filed the caveator must file a CourtSA Originating Application form.

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Probate Subpoenas

A probate subpoena is a form issued by the Court requiring a person to produce the Will or codicil/s to the Court. If you want a subpoena issued, you will need to complete the CourtSA Subpoena Application form.


Renunciation Applications

A renunciation application is made where an executor or person entitled to administer an estate gives up the right to a grant. Where there is no grant application, the CourtSA Renunciation Application form should be used.

Where a grant application is being made, the relevant renunciation form should be uploaded with the CourtSA Grant Application form.

Click here for information about which renunciation form to use with your CourtSA application​.


Will Deposits

Wills may be deposited with Court during the lifetime of the person who has made the Will. This can be done by using the CourtSA Will Deposit form.

Wills Deposited Pursuant to s13 of the Administration and Probate Act 1919

Any Will or codicil of a person who is still alive may be deposited at the Probate Registry under section 13 of the Administration and Probate Act 1919. There is a fee payable.

One of the witnesses to the execution of the Will must be:
  • the Registrar of Probates; or
  • a notary public, solicitor, or a commissioner for taking affidavits in the Supreme Court.

​Practice Notes

The following Practice Notes were issued on 16 November 2018 and took effect on 26 November 2018.

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Telephone the CourtSA Registry Services

p: +61 8 82042444
enquiry@courts.sa.gov.au
8:30am – 5:00pm (Monday – Friday)

Postal Address

1 Gouger Street
Adelaide, South Australia, 5000

Physical Address

Higher Courts Registry, Sir Samuel Way Building,
241-259 Victoria Square Adelaide South Australia 5000

Opening Hours:

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