Wills and Probate - Common Errors to Avoid
If not all Executors Named in the Will Applying
Note: It is common in a will for one or more persons to be nominated in the first instance as executor [this person(s) is the institute executor], and then if that executor predeceases the testator or is unable to act as executor, then another person(s) is nominated as executor as second choice [this person(s) is the substitute executor].
If application is not being made by all the institute executors named in the will, the reason why the other institute executors are not applying must be reflected in the application and the grant.
If application is being made by the substitute executor, the reason why the institute executor is not applying must be reflected in the application and the grant.
Reasons for the above must also be deposed to in the affidavit of the applicant and evidence of the particular reason (e.g. a death certificate or renunciation form – Form 3.15) annexed to the affidavit.
Example: Where there is one institute executor (now deceased) and 2 substitute executors (one has renounced probate) - the grant and the application should include the following wording:
“…granted to [NAME], one of the substitute executors named in the will, the institute executor, [NAME], having predeceased the testator, and the other substitute executor [NAME] having renounced probate.”
The original will must be filed separately.
Note that the original will must be signed by the applicant(s) and the witness(es) to the applicant’s affidavit – (see paragraph 1 of the affidavit in Form 3.11).
The Grant of Probate
The grant must be filed in duplicate with a copy of the will attached to each.
Names of the deceased and the executor must be spelt correctly and full names should be used.
Slight variances in the name of the deceased (e.g. differing in spelling or usage in death certificate compared with the will) must be reflected in the application and the Grant (e.g. [NAME] also known as [NAME]).
Slight variances in the name of the executor must be reflected in the application and the grant (e.g. [NAME] (in the will called [NAME])).
Changes in the name of an executor must be reflected in the application and the grant (e.g. [NAME] (in the will called [NAME])) and also be deposed to in the applicant’s affidavit, annexing evidence of such name change (e.g. marriage certificate, deed poll).
Value of the Estate / Property
NOTE: “Property” in the applicant’s affidavit refers to all property (assets) in the ACT – not just real property.
Sufficient detail must be given to identify assets listed in the inventory.
The value of the estate (in the affidavit and the grant) is the gross value – not the nett value.
The percentage of the value of real property held as a tenant in common by the deceased should be included in the estate.
The date of death on the grant and in the affidavit must accord with the date on the death certificate.
The date of the will on the grant and in the affidavit must accord with the date on the will.
Each annexure to the applicant’s affidavit must have the requisite annexure clause on it and be signed by the witness to the affidavit (see Form 6.12).
Where any affidavit is more than one page in length, the deponent and the witness to the affidavit must initial at the foot of each page.
NOTE: If signing the affidavit at the court registry, an annexure clause stamp is available.