What Is A Probate Requisition?
When someone lodges a probate application with the relevant Supreme Court, there are exacting requirements for it to be complete and accurate. In the event that the application is incomplete or incorrect, the court will issue a probate requisition seeking additional documentation, information, or correction to the application. The process of obtaining probate of a will is delayed until the requisition is satisfied, and may well increase the fees that are payable to the court to obtain probate. This article explains the purpose of a probate requisition and highlights some of the common mistakes that are made in probate applications that lead to requisitions.
What Is Probate?
An executor or administrator of a will applies to the Probate Registry of the Supreme Court for a grant of probate to administrate the deceased estate. A grant verifies that the will is the most recent, valid testamentary instructions of the deceased. The process of applying for a grant can be complicated and it is easy to overlook a necessary requirement or make a small mistake. Even solicitors will occasionally receive a requisition when seeking a grant of probate.
What Is A Probate Requisition?
It is essential that a probate application is accurate; otherwise, there can be considerable delays. Sometimes the Supreme Court issues a requisition that lists problems with the application. This notifies the applicant that one or more of the requirements of the application has not been fulfilled. The court will issue a requisition for a variety of reasons, forcing the executor to file further documents with the court or amend existing documentation. Even if the forms are perfectly filled out, the court may still issue a requisition if they need further information to clarify some aspect of the application. For instance, a requisition may be issued simply because a will has an unexplained mark. Something as minor as a staple mark in the corner of a will may prompt a requisition because the court is concerned that there are pages missing.
A typical requisition is a one-page notice, which notes the case number and title of the application, and asks the recipient to answer specific requisition/s. Answers to requisitions need to be filed simultaneously with a copy of the requisition. Applicants should be aware that fees may be payable when lodging additional documentation.
An applicant cannot ask the court to further explain a requisition. This was demonstrated in the 2001 case of Re Estate of Max Frederick Dippert. In this case, the court reprimanded the solicitors for answering a requisition from the Registrar with a four-page request for further and better particulars on the requisition. The court made it clear that this was not the appropriate way to respond to a requisition. The court emphasised that if an applicant or solicitor is unsure of how to proceed in response to a requisition, they need to consult counsel, not “interrogate” the court.
How To Avoid A Probate Requisition
If an applicant is unfamiliar with the process of obtaining a grant of probate, it can be difficult to correctly complete the documentation. It is highly recommended that an applicant consult an experienced solicitor to avoid mistakes. For a probate applicant that does not have legal assistance, there are some steps to follow to limit the probability of requisitions:
- Locate the original will and death certificate, and check them for any issues that could delay probate. Originals, not copies, must be submitted for probate. If there are any issues with the original will, such as damage, it is important to provide a detailed, formal explanation of how the damage occurred in the form of a sworn affidavit.
- Exactly follow the required wording of the application to avoid miscommunication.
- Check that the names (and aliases) and contact details of the deceased, beneficiaries and executors are correct and complete. It is relatively common for a testator to use an anglicised version of their name on some documents and their full legal name on land titles and death certificates.
- Check that the dates on the application match the date of the will and the date of the death certificate.
- Consider whether there are any unusual circumstances involved in the death of the testator. For instance, if the deceased died overseas, the affidavit should go into further detail as to how the body was identified, etc.
Applying for a grant of probate can be intimidating, and small mistakes and omissions can be costly and time-consuming. The wills and estates specialists at Armstrong Legal can help you make a probate application so that the process is as smooth as possible. They can also help if you receive a probate requisition. Contact us today or call 1300 038 223 to set up an appointment at your earliest convenience.
This article was written by Dr Nicola Bowes
Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.