Applying for a grant of administration with a will annexed

Overview
Purpose
The need to apply
Timeframe to apply
Who can apply
Marriage/divorce after execution of Will
The Will
Codicils
If you can only find a copy of a Will
Applications in relation to an informal Will
Partial Intestacy
Caveats and contested proceedings

1. Overview - Letters of Administration with the Will Annexed

A grant of Letters of Administration is a legal document issued by the Court, which allows the administrator(s) to manage and distribute the deceased’s assets.

There are two distinct types of applications for Letters of Administration:

Letters of Administration – the deceased died without leaving a will ( died intestate). A separate fact sheet is available in relation to applications for Letters of Administration.
Letters of Administration with the Will annexed – the deceased left a Will but there is no executor available to apply for a grant of probate. For example, if the will did not name an executor, or the sole executor has died or is otherwise unwilling or unable to act

Uncontested applications for Letters of Administration with the Will annexed are determined by a registrar on the papers (in chambers). There is no hearing in court.

The Court will not make a grant of Letters of Administration with the Will annexed if there are no assets held in NSW to be administered.

2. The purpose of a Grant of Letters of Administration with the Will annexed

The administrator of an estate is responsible for collecting the deceased's assets, paying any debts and then distributing the assets to the beneficiaries. The reason that the Court issues a grant is so that the administrator can take that grant to persons that currently have the assets of the estate or that are debtors of the estate (such as banks and retirement villages that are holding bonds) and require them to transfer the assets or monies to the administrator (or to such other persons as the administrator may nominate).

If a deceased person owned assets in more than one state or country it may be necessary to apply for a grant in each place where assets were located. However, if a deceased had assets in different states of Australia or in certain countries, you may apply for a resealing of the original grant. A separate fact sheet is available in relation to applications for Reseals of Grants.

3. The need to apply for a Grant of Administration - The release of assets

Depending on the type, size and value of the assets located in NSW it may not be necessary to obtain a grant in NSW. There is no statutory requirement to obtain a grant of representation in every case. Some asset holders will often release modest amounts without the need for a grant being made provided you can establish that you are the next of kin.

If the deceased owned real estate solely in his or her name, or owned real estate as tenants in common with someone else, then a grant will be required to deal with the asset. If however the deceased was a joint tenant of real estate with someone else that survived them, then the real estate passes automatically to the survivor and it is not necessary to obtain a grant, although you will need to complete and file documents with the Land Titles Office to ensure that the certificate of title is updated. If you are uncertain whether land was held as tenants in common or as joint tenants you can find this out from the Land Titles Office.

If the deceased owned no real estate that requires a grant to be obtained then you should consider approaching the asset holders of the other assets (eg banks, superannuation funds, insurers) to determine if they are willing to transfer the assets without a grant being made. It may be possible to have the asset holder transfer the assets by allowing them to see the original death certificate and by the person claiming signing a declaration of their entitlement and/or an indemnity in favour of the asset holder (in case someone else subsequently makes a claim). This option should be considered particularly if you are the deceased’s surviving spouse or defacto spouse or are otherwise the sole remaining next of kin. Each asset holder may apply different criteria and requirements for releasing assets. The proceeds of life insurance and superannuation generally do not form part of the estate, however this will depend on the terms of the relevant policy. You should however verify with the relevant insurance company or superannuation trustee whether they will require a grant to be made or resealed before they determine who is entitled to the superannuation or insurance funds.

4. The timeframe to apply for a Grant

The Supreme Court Rules 1970, Part 78 rule 16 specifies that an application for a grant should be filed within 6 months from the date of death of the deceased. If it is filed any later an explanation must be given to the court explaining the delay. This can be done by either including an explanation in the Affidavit of the Applicant or lodging a separate affidavit of delay.

There is no prescribed or approved form for an Affidavit of Delay, however you can use and adapt UCPR Form 40 at http://www.ucprforms.justice.nsw.gov.au/. Head the document “Affidavit of delay” and set out the explanation for the delay in numbered paragraphs.

5. Who can apply for a Grant of Letters of Administration with the Will annexed

An application for a grant of Letters of Administration can only be made by someone who is not an executor appointed under the will. An application for a grant by an executor should be an application for Probate (not for Letters of Administration with the Will Annexed). A separate information sheet is available for applications for Probate.

(a) A Beneficiary under the Will

The most common applications for a Grant of Administration with the Will annexed are made by the sole or main beneficiary under the will, however anybody who is a beneficiary under the will can apply. Sometimes a substituted executor under a will may apply for Letters of Administration with the Will Annexed if the conditions for their appointment did not take effect. For example if the will names a substitute executor but states that the substitution only takes effect if the 1st named executor predeceases the deceased, but the 1st named executor does not predecease the decease but is either unable or unwilling to apply. In such cases, if the substitute executor is also a beneficiary under the will, then they may be able to apply for Letters of Administration with the Will Annexed, however the capacity in which they are applying is as a beneficiary rather than as a substitute executor.

(b) Standing to apply

Generally only persons who are entitled to a share of the estate (i.e. beneficiaries under the will) are entitled to apply for Letters of Administration with the Will annexed. Applications made by somebody who is not a beneficiary themselves “on behalf of” a beneficiary that does not want to make the application themselves (such as the child of a deceased on behalf of the their surviving spouse/parent who is the sole beneficiary) will not be granted. A grant may be made to the attorney of a beneficiary, if the beneficiary lives outside of NSW. A grant may also be made to the legal guardian of a beneficiary who is under 18, or to the guardian or manager of a beneficiary who because of a mental incapacity is unable to apply themselves.

6. Marriage /divorce after execution of Will

If the testator marries or remarries after executing the will, this may revoke the will. The affidavit of applicant includes a statement that the testator did not marry after the will was made. If this is not the case you should seek legal advice in relation to whether the will has been revoked or not. Normally the only circumstance where a will is not revoked by a subsequent marriage is where the will is stated to have been made “in contemplation of marriage”

A divorce will also normally revoke the former spouse’s entitlement under the will and their rights to be the executor of the will.

7. The Will

The first essential requirement for an application for a Grant of Letters of Administration is that the deceased left a will.

You should check that you have the original will (and codicils, if applicable). The original will (and codicils) must be filed with the application and will be retained by the Court. To be valid a will or codicil must be in writing and signed by the testator and by two witnesses. Verify that the will is not a carbon or photo copy. If you cannot find the original will but have found a copy, or if the will is unsigned or has not been properly witnessed it may still be possible to apply for a grant. See further information below.

If the will is undated evidence will need to be provided as to when the will was executed. This will be particularly important if there is another will, to establish which Will was made last. An affidavit by an attesting witness, or from such other persons who may have relevant information as to the date the will was made, or narrowing down possible range of dates when the will was made should be provided.

An affidavit of an attesting witness will also be appropriate if there is any doubt as to the proper execution and witnessing of the will. If the will has any hand-written amendments that do not appear to have been initialled by the testator and the witnesses an affidavit of attesting witness as to whether those amendments were made before the will was executed will normally be required. Affidavit evidence may also be required if it appears that other documents were attached to the will at some time and that those documents have subsequently been removed, or if the will has been torn or otherwise defaced since it was executed. See Supreme Court Rules Part 78 Division 3 Subdivision 3.

8. Codicils

A codicil is a document that amends, rather than replaces, a previously executed will. A codicil may vary or replace the executors named in the original will. The will and codicil will need to be read together to determine if the testator appointed an executor, and if so who the executors (and substitute executors) are. If the testator has made a codicil, or codicils to the will, the application for a Grant will be for Administration with the Will and codicil(s) annexed. Amendments made by a codicil may add or revoke small provisions or may completely change the majority, or all, of the gifts under the will.

9. If you can only find a copy of the Will

If the original will cannot be found but there is a copy of a will, which is believed to be the last will of the deceased then you may still be able to apply for Letters of Administration with a Copy of the Will Annexed. The actual copy of the will needs to be filed with the application.

The affidavit of applicant will need to explain where the copy of the will was found and set out all the searches that have been made for the original will (that the copy is of) or any later will that the deceased may have made. Such searches must at least include searches through the deceased’s personal papers and effects, searches at any solicitors the deceased may have used, any banks used by the deceased and the NSW Trustee & Guardian. If the copy shows that the original will was prepared by a solicitor then enquiries should be made with the relevant firm of solicitors to check that they do not have the original will, and as to what their usual practice was when wills were prepared for their clients (i.e. whether they normally held the originals in safe custody or gave the original to the client). If the will was last held by a solicitor then an affidavit by the solicitor or somebody in that solicitor’s firm should be provided as to the searches that they have undertaken for the original will. If the evidence suggests that the original will was last in the possession of the deceased then there is a presumption that the deceased revoked the will by destroying the original will. To rebut this presumption the application will need to be supported by evidence (which can be included in the affidavit of applicant to the extent that the applicant can provide this evidence) that goes to prove that the deceased did not intend to revoke the will. Such evidence can include conversations the deceased may have had in relation to his or her will, but could also include evidence as to there being no substantial change of circumstances since the will was originally made that may have led to an expectation that the deceased may have changed their will.

The affidavit of applicant will also need to set out who would be entitled under intestacy (i.e. if there was no will). If the people that would be entitled under intestacy are different to the beneficiaries under the copy will then it will be necessary to either obtain the consents of those persons who will be adversely effected if a grant is made in relation to the copy will, or to prove that they have at least been served with notice of the application. For information about who is entitled under intestacy see the separate information sheet in relation to Applying for Administration.

A grant of Administration with a Copy of the Will Annexed is a limited grant. Although in most cases the original will is unlikely to be found the grant is limited until the original will is found and an application for a grant in relation to the original will is made. In the summons for Letters of Administration with the Will Annexed (UCPR form 111) this is to be included in the “relief claimed” section of the form:

Qualifications or limitations on the grant: Until the Original will is found and proved.

Similarly this should appear on the draft grant of Letters of Administration with the Will Annexed (UCPR form 112) as the basis of grant:

Administration with the a Copy of the Will Annexed; Limited until the original will is found and proved.

In the affidavit of applicant the applicant should include an additional paragraph giving an undertaking to produce the original will to the Court if it is found and to apply for a grant in relation to the original will if the estate has not been fully administered.

10. Applications in relation to an informal Will

It is a formal requirement of a will that it be signed by the testator and that it be witnessed by two witnesses who both saw the testator sign. Nevertheless the Court may make a grant in relation to a will that does not meet these formal requirements if it can be satisfied that the document was intended by the deceased to be their will. If an application is being made in relation to an informal will the summons (UCPR Form 111) must include an additional claim for an order (in addition to the grant of Letters of Administration with the Will Annexed) that the Court make a declaration under section 8 of the Succession Act that the informal will constituted the last will of the deceased.

The affidavit of applicant will need to disclose if there is an earlier will that would take effect if the informal will is held not to be operative. If there is no earlier will that would take effect the affidavit of applicant will also need to set out who would be entitled under intestacy. If the people that would be entitled under intestacy are different to the beneficiaries under the informal will then it will be necessary to either obtain the consents of those persons who will be adversely effected if a grant is made in relation to the informal will, or to prove that they have at least been served with notice of the application. See Supreme Court Rules Part 78 rule 14 and Division 6, and UCPR form 134.

11. Partial Intestacy

If the will leaves specific gifts but does not have a provision that deals with the rest or residuary of the deceased’s estate, and/or if specific gifts fail because the beneficiaries predeceased the deceased or for some other reason, then it is possible, depending on what the deceased’s estate consisted of, that there may be a partial intestacy. It is recommended that you obtain independent legal advice if there is the possibility of a partial intestacy.

12. Caveats and contested proceedings

A person with an interest in the estate of a deceased person can file a document called a caveat which prevents the Court from issuing a grant in relation to the estate. See Supreme Court Rules Part 78 Division 10. A caveat remains in force for 6 months from the date on which it is filed. There is an approved form for a caveat ( UCPR form 141) and a filing fee is payable. The caveat must be served on any known applicants or potential applicants for a grant of probate or administration of the estate. The Court will not stop making a grant in relation to a pending application simply because someone with a potential interest writes a letter or calls the registry. The reasons a caveat is filed include where someone wants to challenge the validity of a will, which may be an informal will or a will that appears to be valid but where there is a claim that the will is a forgery or that there is doubt as to the testamentary capacity of the testator, or a claim that the will was executed under undue pressure. There may be circumstances where there are two or more possible wills naming different executors. A beneficiary that wants to proceed with an application for a grant of Administration with the Will Annexed can apply to the Court for a caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to the validity of the will. See Supreme Court Rules Part 78 rule 71. Alternatively if there is doubt as to the validity of a will contested proceedings can be commenced for probate to be granted in solemn form. Such proceedings are commenced by statement of claim. See Supreme Court Rules Part 78 rule 72. An application for a grant in solemn form is determined by a Judge rather than a registrar. If there is a prospect that an application will be contested it is recommended that the applicant seeks independent legal advice.

Last updated:

20 Sep 2023