What is Probate, why is it necessary to obtain, and what common issues arise?

One of the most important steps of the estate administration process is obtaining a grant of Probate.

Probate is the seal of the Supreme Court of Queensland that officially recognises a Will as valid. It confirms that the formal requirements of the Will have been complied with and that the executor has been properly appointed. Furthermore, Probate demonstrates that due notice has been given that the document is the final Will of the deceased.

It is necessary to obtain a grant of Probate to allow the executor to administer the estate. This enables the executor to claim estate assets, pay the outstanding debts of the deceased, make investments on behalf of the beneficiaries, and distribute the estate assets. Financial institutions and banks will require a grant of Probate to ensure the validity of the Will and the executor’s ability to transfer estate assets.

There are a number of issues that can arise when applying for Probate. This blog article will step through nine of these issues.

  • Firstly, the Will is damaged or has holes in it from removed staples. In this case, the executor will need to explain how this occurred using a Form 111 – Affidavit of Plight. This Form requires a deponent to state on oath whether there were any other testamentary documents attached to the Will that have since been separated.

  • The testamentary capacity of the Willmaker is another common issue that arises in the context of Probate. This legal issue was raised In the Will of Esme Jane Ferris, heard by the Supreme Court of Queensland in 2020.[1] At the time of executing her second Will on 14 March 2016, Ms Ferris had been diagnosed with rapidly advancing Alzheimer’s disease. Moreover, her psychiatrist had recommended that she be admitted to a dementia unit for specialised care. This drew into question the testamentary capacity of Ms Ferris to radically alter her first Will which had been executed on 31 May 2005. Ultimately, the Court was satisfied that Ms Ferris did not have testamentary capacity at the time, and the second Will was therefore declared invalid. A grant in common form was instead ordered for the earlier Will.

In these cases, the onus of proving testamentary capacity falls on the plaintiff. Probate will not be granted where there is significant doubt as to the testator’s soundness of ‘mind, memory and understanding’ at the time of executing the Will.[2]

  • Another common problem occurs where the executor only holds a copy of the Will as the document is missing or lost. In this case, the executor will be required to complete a Form 9 – Application with supporting affidavit material.

  • Thirdly, if the Will has been incorrectly or inconsistently dated, one of the witnesses will need to file an affidavit using Form 107 – Affidavit of due execution of will/codicil stating that the Will was duly executed. This Form must be accompanied by a copy of the original last Will.

  • A Form 107 must also be completed where the attestation clause does not make clear that the testator was blind or illiterate at the time of executing their Will. One of the witnesses will be required to complete this Form to confirm that the testator was completely aware of the contents of the Will and approved of its execution.

  • Next, if an attestation clause was not included in the Will at all, a Form 107 will again need to be filled out by a witness or another person present while the Will was signed. They will be required to confirm the identities of those present during the execution of the document. Alternatively, an affidavit may be filed alongside a copy of the Will.

  • Moreover, a notice for Probate must include all known aliases of the deceased. If this does not occur, the process must be started again. A new affidavit using Form 104 – Affidavit of publication must be submitted, the notice must be re-advertised and re-served to the Public Trustee, and the registry counter must be attended to amend the headings of the filed documents.

  • A typographical error in the application for Probate regarding the date of the Will is much easier to fix as an amended application can be filed.

  • Finally, an application that has been submitted too early can be refiled after two weeks has passed since filing the last application and the publication of a death notice in the newspaper.

Evidently, obtaining a grant of Probate is an essential step of estate administration. At Perspective Law, we have the experience that is required to step you through this process. For further information, please do not hesitate to call our office on (07) 3839 7555 to discuss your specific needs.