Affidavit of executor (SCR Part 78 rule 12 (SCR Form 97)) (Form 118)

An application for a grant of probate must be accompanied by an affidavit in support containing the information the relevant form requires (Supreme Court Rules 1970 Part 78 r 12). The rule's note names UCPR Form 118 as the prescribed affidavit for probate. It is sworn by the executor applying, and it is the main evidence the registrar relies on to make a grant in common form. The form carries two numbers because Part 78 forms were once numbered in the Supreme Court Rules (this one was SCR Form 97) and are now approved forms in the UCPR series (Form 118). Applications for probate must be made through the NSW Online Registry (r 9A).

When you need it

• You are the executor named in a will and are applying for a grant of probate in NSW.
• The deceased left assets in NSW. The Supreme Court only has jurisdiction where there are NSW assets.
• Not for administration (Form 119), administration with the will annexed (Form 120) or a reseal of a foreign grant (Form 121).

1. 1

   Identify the will (paragraphs 1 to 3)

   Identify the will by date. You and the witness sign it in the margin. Say you know of no other testamentary document (or identify any), explain how you identify the will, and name the attesting witnesses. The Supreme Court's checklist says it is not enough to say you knew the deceased; explain how you recognise their signature on the will.

2. 2

   The deceased (paragraphs 4 to 6)

   State the date of death and age, annex the death certificate marked A, say whether the deceased married after making the will, and confirm the deceased left assets in NSW.

3. 3

   The executors (paragraphs 7 to 9)

   Confirm you are the named executor and over 18. Explain any named executor who has died or renounced, and give the undertakings to administer the estate according to law and to verify and file (or pass) accounts within 12 months if the Court requires.

4. 4

   Notice of the application (paragraph 10)

   State the date the notice of intended application was published on the NSW Online Registry. The older newspaper options only apply to notices published before 21 January 2013.

5. 5

   Beneficiaries, assets and liabilities (paragraphs 11 to 14)

   List the names, ages and entitlements of the beneficiaries, annex a statement of all known assets (the inventory of property), list known liabilities with dates and amounts, and give the gross and net value of the estate.

6. 6

   No doubt as to entitlement and swearing (paragraph 15)

   Confirm you know of nothing that casts doubt on your entitlement, then swear or affirm before an authorised witness. You and the witness must sign every page (UCPR r 35.7B).

• Apply through the NSW Online Registry Probate service (SCR Pt 78 r 9A). An online application must include electronic copies of the will, any codicils and testamentary instruments, and a certified copy of the death certificate (r 10(1A)). Each supporting affidavit is filed under UCPR Part 3 Division 3 (r 12(2)).
• Notice of the intended application (Form 116) is published on the Online Registry. The Supreme Court states that at least 14 days' notice must be given before the summons is filed (Probate and Administration Act 1898 s 42).
• If the application is filed more than 6 months after the death, explain the delay in the affidavit or in a separate affidavit of delay (Supreme Court guidance on Part 78 r 16).
• A filing fee applies. Check the Supreme Court's current fee schedule.

• UCPR r 35.3B(2) requires every affidavit to state that generative AI was not used to generate its content. Form 118 version 3 has no paragraph for this, so add one (Form 40 version 8 shows the wording).
• If the will names more executors than are applying, explain why in the affidavit, for example death or renunciation (Form 123).
• Applying on a copy of a will needs extra evidence of searches for the original and an undertaking to prove the original if found (Supreme Court guidance).