Probate Dispute Solicitors

Legal Helpline: ☎ 1800 529 835

If you are an executor or beneficiary of a will in Australia and you require advice or representation in a probate dispute case, contact our obligation-free legal service.

Where a person has died and you wish to challenge the will, it may be necessary to legally prevent a grant of probate. Our probate dispute lawyers are experts in this complex area of will dispute litigation.

Call our free helpline or complete the contact form on this page. We currently provide assistance in most jurisdictions of Australia.

What is a grant of probate?

A grant of probate is generally a certificate issued by the court confirming the formal validity and content of the will. It gives the executor authority to administer the estate, including collect assets, pay bills, and pay beneficiaries of the will. The grant of probate is made by the Supreme Court in each State and Territory of Australia. A grant of probate gives the executor authority to deal with assets within the jurisdiction of the court making the grant. The grant works to protect the executor who acts in good faith from potential liability when dealing with the assets of the estate.

Is Probate necessary?

In some circumstances, it may not even be necessary to apply for probate. A grant of probate will almost certainly be needed if the deceased's estate involves real estate that will be sold, other than property held as joint tenants.

The Probate Process

A personal representative (executor) will generally need to:

• Be satisfied that the deceased is in fact dead before they take any steps in dealing with their estate.
• Ensure that any assets that require immediate attention are attended to.
• Arrange the funeral and disposal of the body.
• Find the will and apply for probate (or letters of administration if there is no will).

Obtaining Probate

There are various probate forms and documents that will need to be completed in order to apply for probate. These forms are generally supplied by the Court Registry and are available online.

Before granting probate, the Court needs to be satisfied that the document produced is a will; the document is the last will of the deceased; the formal requirements for a will have been met; the document was made with full knowledge and approval of the deceased.

In all Australian jurisdictions, proceedings for a grant of probate are divided into 2 types: non-contentious proceedings and contentious proceedings. With non-contentious proceedings, the Court will grant probate in common form. With contentious proceedings, the Court will grant probate in solemn form.

The Rules of the Court will specify the procedure for obtaining a grant of probate depending on whether probate is contentious/disputed or non-contentious.

Grant in Common Form

Where the will appears to comply with all formalities, has an appropriate attestation clause, and seems to be the last will of the testator, a grant in common form should be obtained. It presupposes that there is no issue to be litigated in relation to the will. In this situation, a person completes the various forms required by the court, provides proof of death (usually by providing the death certificate).

In some situations, it may be possible to apply for a grant in common form, even though there may be a problem such as the will lacking an attestation clause. In such a situation, an affidavit would need to be provided to explain why this is the case.

Grants in Solemn Form

If there is doubt about the validity of the will, for example it hasn't been properly executed or there is doubt it is the last will of the testator, the will is generally proved in solemn form. The executors will usually put forth evidence that it is the final will and it was properly executed, and this evidence may be challenged. Oral evidence is called and cross-examination is allowed. Once a grant in solemn form is made, it is binding, and in only vary rare circumstances can it be revoked.

Contested Probate Lawyers

If you require legal advice on contesting probate or challenging a will, our probate dispute solicitors can help. Simply call our free helpline or send through your details via the contact form on this page to receive legal assistance.