A guide to probate requisitions and how to deal with them
When applying for a Grant of Probate or Letters of Administration in Victoria, the process can be delayed if the Supreme Court issues a probate requisition. This blog explains what a probate requisition is, why it may be issued (for example, due to missing documents or errors in the application), and how to respond.
We also explore some of the common pitfalls and tips to help executors and applicants avoid unnecessary delays in administering the estate.
The first step is to apply for probate
When someone passes away, their estate will need to be distributed in accordance with the terms of their Will, if they have left a valid Will. If the deceased left no valid Will, their estate will need to be distributed in accordance with a formula, known as the Rules of Intestacy, which is contained in the Administration and Probate Act 1958 (Vic).
In order for the executor (or generally the major beneficiary of the estate where the deceased left no Will) to administer and distribute the deceased person’s estate, they must first apply to the Supreme Court of Victoria for a Grant of Probate, where the deceased left a Will, or for Letters of Administration of the estate, where the deceased left no valid Will.
Inaccurate or incomplete applications may lead to a probate requisition
An application for a Grant of Probate or Letters of Administration can be a relatively straightforward process, provided that the applicant has submitted all of the required documentation and the application contains no errors.
Before the Court can issue a Grant of Representation, it must ensure the application is complete and accurate and meets certain requirements. If the application has been completed incorrectly or is missing relevant details, the Court will issue a “probate requisition”.
What is a probate requisition?
A probate requisition is a notification from the Supreme Court that raises questions or concerns about an application for a Grant of Probate or Letters of Administration.
Where there is a concern or issue, a requisition is used by the Supreme Court to seek further information, evidence, rectification or clarification with respect to an application. The executor or applicant will need to satisfy the requisition before the application can proceed.
How is a probate requisition issued?
The probate requisition is usually issued in the form of a notice sent by email to the executor or applicant, or their lawyer, where they have engaged legal representation, from the registrar of probates. The requisition will note the case number and title of the application.
The requisition will detail the further steps or information required and will typically require the executor or applicant to address specific issues with the application and either file additional documents or amend existing documents.
Additional documents required in support of the application must be uploaded to the Redcrest Probate portal, the e-filing system used by the Supreme Court to issue probate applications, once obtained.
Common examples of scenarios leading to probate requisitions
Below are common scenarios where incomplete information or documents, or errors in the application itself, may lead to the Court issuing a probate requisition with respect to an application.
- The original Will cannot be located.
- The Will is not dated.
- The Will has not been signed by the testator in the presence of two witnesses.
- The Will has been altered after execution (i.e. signing).
- The deceased’s Will has been executed overseas.
- An executor is unable to act or has renounced probate.
- The sole executor is incapable of applying for a grant.
- An unregistered domestic partner is applying for a grant.
- Staples in the Will have been removed, or the Will otherwise appears to have been tampered with.
- The deceased was suffering from dementia when they made the Will.
- The deceased’s name on the Will does not match the name on the application.
When applying for a Grant of Probate or Letters of Administration and any of the above scenarios apply, it is important to obtain legal advice and to prepare your application to sufficiently address these scenarios.
In many instances, additional information and evidence will need to be filed in support of the application, causing considerable delay if not dealt with prior to making the application. The information required will vary in each case. Therefore, it is important to obtain advice from an experienced probate lawyer.
The court will not make a Grant of Representation in respect of the application, and the application may not be able to proceed if additional evidence or clarification is not provided.
How to ensure your application is not requisitioned
In addition to ensuring that additional information and documents are filed where one of the above scenarios applies, an executor or applicant should also:
- make sure they have obtained the original Will and death certificate, not merely copies of these documents;
- ensure that any imperfection or damage to the Will is explained in their Affidavit lodged with the application for probate;
- check that the name on the Will matches the name of the deceased on the death certificate (not an alias, nickname or an anglicised name);
- ensure the dates in the application are accurate – including the date the Will was signed and the date of death;
- make sure that all executors mentioned in the Will are accounted for in the application (including their name and current address).
A probate requisition can delay the administration of the estate, but it can usually be rectified without requiring an entirely new application to be filed. By understanding the Court’s requirements and responding promptly and accurately, applicants can smoothly navigate the probate process in Victoria.
Get help from a probate lawyer
If an application for probate is not straightforward or an executor or applicant has filed an application which has not been prepared by a lawyer and which has been requisitioned, they may want to consider engaging a probate lawyer to assist them with the process and avoid further mistakes and delays.
Contacting Smith Family Law
Further reading:
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Smith Family Law.
