We do a lot of work helping clients navigate complicated deceased estates matters, including getting grants of probate.
A grant of probate is an order made by the Supreme Court after a person dies leaving a valid will. It confirms that the Court accepts the will as the deceased’s last valid will and authorises the executor to collect the deceased’s assets, pay debts and taxes, and distribute the remaining estate to the beneficiaries.
Probate is commonly required where the deceased owned real estate in their sole name or held substantial bank accounts, shares or investments. It is usually unnecessary for jointly owned property that passes automatically to the surviving joint owner.
For example, if Maria dies leaving a house in her sole name and appoints her daughter as executor, her daughter will generally need probate before she can sell or transfer the house.
Probate in common form is the usual type of grant. It is appropriate where nobody disputes the will, no probate caveat has been lodged, the original will is available and appears properly signed, and there are no serious concerns about the deceased’s mental capacity or possible undue influence.
The executor files the will, death certificate and supporting documents with the Court. If everything is in order, the application is generally decided administratively without a hearing.
For example, David leaves a straightforward will dividing his estate equally among his children. Everyone accepts the will, and there are no concerns about how it was prepared or signed. Probate in common form would ordinarily be appropriate.
A common-form grant is legally effective but may later be revoked if someone successfully challenges the will—for example, because a later will is discovered or credible evidence shows that David lacked capacity when he signed it.
Probate in solemn form involves a formal judicial determination of the will’s validity, usually following contested court proceedings. It may be appropriate where there is a substantial dispute about whether the deceased had mental capacity, understood and approved the will, signed it properly, was subjected to undue influence, or where forgery or competing wills are alleged.
For example, suppose David’s final will unexpectedly leaves his entire estate to a new carer, despite an earlier will benefiting his children. If the children allege that David had advanced dementia or was pressured into signing, the executor may need to prove the will in solemn form.
In solemn-form proceedings, interested parties can provide evidence and challenge the evidence relied upon by others. A judge then determines whether the will is valid. A solemn-form grant provides greater finality and is significantly harder to overturn than a common-form grant, although it may still be reopened in exceptional circumstances, such as fraud or the discovery of a later valid will.
In short, probate in common form is ordinarily appropriate for an uncontested estate, while probate in solemn form is used where the will’s validity is genuinely disputed or a binding judicial determination is required.
