Consent to administration (SCR Part 78 rules 19(1)(a) and 21(3) (SCR Form 101)) (Form 125)

When only some of the people in Australia who are entitled to administration of an estate apply for the grant, the application must be supported, for each person not applying, either by that person's written consent with an affidavit verifying the consent endorsed on the same document, or by an affidavit of service of the applicant's notice of intention to apply (Supreme Court Rules 1970 Part 78 r 19(1)). Form 125 is the approved form for the consent route. Its heading also cites r 21(3), which applies the same consent-or-notice requirement to an application by a de facto partner of a person who died before 1 March 2010. The form carries two numbers because probate forms used to be numbered in the Supreme Court Rules (this one was SCR Form 101) and are now approved forms in the UCPR series (Form 125). They are the same document; Part 78 r 2 requires Part 78 documents to follow the approved form.

When you need it

• You are applying for letters of administration and another person with an equal or prior entitlement is not joining the application but is willing to consent (SCR Pt 78 r 19(1)(a)).
• You want the non-applying person to also consent to the administration bond being dispensed with (an optional paragraph in the form).
• A de facto partner is applying for administration of the estate of a person who died before 1 March 2010 and the people who would otherwise take the estate consent (r 21(3)).
• If the person will not sign a consent, the alternative is to serve them with notice of the intended application and file an affidavit of service instead (r 19(1)(b)).

1. 1

   Court details and title

   The form is pre-set for the Supreme Court of NSW, Equity Division, Probate List. Insert the case number if known, the name of the deceased and the deceased's last address, and the filing details for the plaintiff (applicant) or their solicitor.

2. 2

   Declaration of consent by the affected person

   Insert the consenting person's name, address, occupation and the date. They declare that they are over 18, are not an undischarged bankrupt and have not assigned or encumbered their interest in the estate, and they name the applicant and the applicant's relationship to the deceased.

3. 3

   Choose the optional paragraphs

   Keep or delete the words consenting to the administration bond being dispensed with, and keep the de facto paragraph only where the application relies on a de facto spouse's entitlement. Delete whatever does not apply.

4. 4

   Signatures

   The consenting person signs in front of a witness, who also signs the consent.

5. 5

   Affidavit of the witness

   The witness then swears or affirms the affidavit printed on the same form, saying the consent was signed in their presence on a stated date and identifying the signatures. This affidavit must be made before someone other than the consenting person, such as a justice of the peace, solicitor, barrister, commissioner for affidavits or notary public, who completes the certificate about seeing the deponent's face and confirming their identity.

• Applications for probate or administration must be made through the NSW Online Registry website unless a registrar approves another method (SCR Pt 78 r 9A). The consent is filed as part of that application.
• The Supreme Court's probate checklist lists Form 125 consents as the document filed under r 19, and notes the consenting person must have legal capacity to give the consent.
• If you use the notice route instead of a consent, the notice must have been served at least 14 days before the proceedings commence and may be served personally or by post (r 19(2) and (3)). File an affidavit of service (Form 41).
• A filing fee applies to the application. Check the Supreme Court's current fee schedule.

• Get one Form 125 for each person within Australia who is entitled to administration but not applying (r 19(1)).
• The consent and the verifying affidavit must be on the same document (r 19(1)(a)). A separate unsigned letter of consent is not enough.
• The probate checklist notes a legal guardian may consent on behalf of a minor, except where the guardian is the applicant.