Affidavit of applicant for administration with the will annexed (SCR Part 78 rule 12 (SCR Form 104)) (Form 120)

Letters of administration with the will annexed are granted where the deceased left a will but no executor is available to take probate, for example because the will names no executor or the executor has died or renounced (Supreme Court fact sheet). The application must be supported by an affidavit containing the information required by the approved form (Supreme Court Rules 1970 Part 78 r 12(1)); the rule's note names UCPR Form 120 for administration with the will annexed. It was SCR Form 104. The applicant identifies the will, its witnesses and the death, explains why no executor is applying, lists who takes under the will, discloses assets and liabilities (Probate and Administration Act 1898 s 81A) and gives the administrator's undertakings.

When you need it

• The will names no executor, or every named executor has died, renounced or cannot act, and you are a beneficiary under the will.
• An executor is not applying and you are applying as the attorney, guardian or manager of a beneficiary (the fact sheet explains these limited grants).
• If a named executor is applying, the application is for probate (Form 118), not administration with the will annexed.

1. 1

   Court and filing details

   Pre-set for the Supreme Court of NSW, Equity Division, Probate List, Sydney. Insert the case number if known, the deceased's name and last address, and the plaintiff's details.

2. 2

   The will (paragraphs 1 to 3)

   Identify the will by date, which you and the person taking the affidavit sign in the margin, say you know of no later testamentary document, explain how you identify it and name the attesting witnesses.

3. 3

   Death, marriage and eligibility (paragraphs 4 to 7)

   Annex the death certificate as "A", state whether the deceased married after making the will, confirm NSW assets, and that you are over 18, not bankrupt and have not assigned your interest.

4. 4

   Executor and beneficiaries (paragraphs 8 and 9)

   Explain what happened to the named executor (died, with certificate, or renounced on a date). List those entitled under the will, with facts proving entitlement where they are not named on its face.

5. 5

   Undertakings, notice, assets and liabilities (paragraphs 10 to 14)

   Undertake to administer according to law and to file or pass accounts within 12 months if required, give the Online Registry notice date, annex the asset statement, list liabilities and state gross and net values.

6. 6

   Paragraph 15 and swearing

   Confirm nothing raises doubt about your entitlement, then swear or affirm before an authorised witness who completes the identity certificate. Both sign every page.

• Before applying, publish a notice of intended application (Form 116) on the NSW Online Registry website (SCR Pt 78 r 3) at least 14 days before the application is made (Probate and Administration Act 1898 s 42(2)(b)).
• Applications for a grant of probate or administration must be made using the NSW Online Registry website unless the registrar approves another method (SCR Pt 78 r 9A). The affidavit in support is filed under UCPR Part 3 Division 3 (r 12(2)), and the application must be accompanied by electronic copies of any will and codicils and a certified copy of the death certificate (r 10(1A)).
• Where all named executors have renounced, evidence of each renunciation must be furnished, and any signed renunciation must be filed (r 18(1)).
• If filed more than 6 months after the death as the first application, explain the delay (r 16). The Court may require an administration bond with 2 sureties (r 23).
• A filing fee applies. Check the Supreme Court's current fee schedule.

• UCPR r 35.3B(2) requires every affidavit to include a statement that generative artificial intelligence was not used to generate its content. The current form does not print that statement, so add it.
• A marriage after the will was made may revoke it, which is why paragraph 5 asks about it. The Supreme Court fact sheet suggests legal advice if the deceased did marry afterwards.
• The original will and codicils are filed and kept by the Court. If only a copy exists, the fact sheet explains the limited grant and the extra evidence needed.
• Where only some of the persons entitled to administration apply, each person not applying must consent (Form 125) or be served with notice at least 14 days before the proceedings start (r 19). Administration includes administration with the will annexed (r 1).