April 15, 2019

Wills and Estates

what is a grant of representation?

One of the first decisions of a personal representative for an estate (ie: an executor appointed by will or an administrator under intestacy) is whether or not to apply for a grant of representation (probate or letters of administration).

In circumstances where there is little or no real risk of litigation in the estate or where any issues surrounding the making of the will can be explained by affidavit, the application for the grant of representation is called a common form application.  Common form applications are usually dealt with either by the probate registry at the Supreme Court. 

A solemn form application is made where there is litigation questioning the validity of the will.  The common grounds for bringing a proof in solemn form action are:

  • Lack of capacity
  • Undue influence
  • Suspicious circumstances

Who can make an application for proof in solemn form?

An applicant must be someone who is affected by the grant. This can be where the applicant/s has an interest under a previous will or where they would otherwise benefit on intestacy (i.e. if there was no will).

Solemn form applications are often seen in circumstances where an earlier will benefits the applicant but a later will does not. The applicant in such cases would be adversely affected if the later will was upheld and so their application seeks to set aside the later will on one or more of the grounds outlined above and to rely on the early will.

If you would like further information please contact the McInnes Wilson Estate Law Team on (07) 3231 0400.