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Grant of Probate (Common Form vs. Solemn Form – What’s the difference?)

A Grant of Probate – What does “Common Form” and “Solemn Form” mean?

A Grant of Probate is a necessary legal document granted by the Court that allows the Executor of the Will to deal with the deceased’s assets and debts and make sure they are distributed in accordance with the wishes of the deceased as set out in their Will.

What is a Grant of Probate in Common Form?

There are two ways in which a Grant of Probate can issue from the Court. The first way is commonly referred to as a Grant of Probate in Common Form. This is when there are no disputes about the Will and the Grant of Probate is uncontested. To obtain a Grant of Probate in Common Form an application is made to the Court, the filing fee is paid and the application is considered and determined by the Registrar of the Court, and not in the courtroom.

What is a Grant of Probate in Solemn Form?

A Grant of Probate in Solemn Form is a formal court proceeding to have the Will proved in the courtroom. A Grant of Probate in Solemn Form will generally arise where there is a dispute over whether the Will is valid because the deceased lacked testamentary capacity when they made the Will or because there is an issue on whether the deceased was unduly influenced by another person when they were making the Will.

Case Study: Petrovski v Nasev; The Estate of Janakievska

The New South Wales Supreme Court case of Petrovski v Nasev; The Estate of Janakievska highlights the instances when a Grant of Probate in Solemn Form is necessary.

Vasilka Janakievska made two Wills during her lifetime, one in 1999 and one in 2004. The 1999 Will was correctly executed and was a valid and enforceable Will. The issue in the proceedings was whether the 2004 Will was valid and could be admitted to probate. The Court was required three questions to determine the validity of the 2004 Will being:

  • Had the deceased validly executed the 2004 Will;
  • Did the deceased have testamentary capacity when she executed the 2004 Will; and
  • Was the 2004 Will produced as a consequence of undue influence?

The value of the deceased’s Estate was approximately $1.5 million dollars. The Court heard that at the time of making the 2004 Will the deceased was senile and had suffered a stroke in 2003 putting her in poor physical and mental health.

After considering the evidence the Court found that the deceased was subjected to undue influence when making the 2004 Will. The Court ordered that a Grant of Probate in Solemn Form be made of the deceased’s 1999 Will.

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