Notice of proceedings (SCR Part 78 rule 57 (SCR Form 113)) (Form 140)

Any party to proceedings for a grant of probate or administration may file and serve a notice of proceedings on a person whose interest is adverse to theirs, and must do so where Part 78 or a court direction requires it (Supreme Court Rules 1970 Part 78 r 57). The notice was formerly called a citation to see proceedings. It must say that if the person does not appear, the proceedings may be decided in their absence (r 57(3)). Once served, the person is bound by the orders made, whether or not they appear (r 60). Form 140 is the approved notice; it was numbered SCR Form 113 when probate forms sat in the Supreme Court Rules.

When you need it

• The application seeks an order under s 10(3)(c) or 27(1) of the Succession Act 2006 (for example an interested witness or rectification issue). The applicant must file an affidavit identifying the people adversely affected and serve each of them with a notice of proceedings within 28 days after the application for the order (r 39(2)), unless they have consented.
• In contested probate proceedings, to bring a person with an adverse interest into the proceedings or bind them to the result (rr 57, 60).
• Where the Court has directed that a particular person be given notice (r 57(2)).

1. 1

   Court details and title

   The form is set for the Supreme Court of NSW, Equity Division, Probate List. Insert the case number, the deceased's name and last address, and who prepared the notice.

2. 2

   The deceased and the proceedings

   State when and where the deceased died, who is issuing the notice and their role (plaintiff, defendant or cross-claimant), and annex the statement of claim or summons marked A and any will referred to marked B, plus other relevant pleadings or affidavits.

3. 3

   State the adverse interest

   Explain in paragraph 3 why the person may have an adverse interest, and confirm they have not consented to the orders sought.

4. 4

   Leave the standard paragraphs in place

   Paragraphs 4 to 7 tell the person they will be bound by the orders, that the Court may proceed without them if they do not file an appearance, that appearing entitles them to notice of the hearing, and that they can elect in their appearance to become a defendant (rr 57(5), 58, 60).

5. 5

   Sign and add contact details

   Sign and date, and complete the address and address for service of the person serving the notice.

• File the notice and serve it personally. Notices under this Division must be served personally, and the general service rules in UCPR Part 11 do not apply (r 64).
• The issuing party cannot be heard without leave unless the person has appeared or the issuing party has filed an affidavit of service, or an affidavit explaining why service has not occurred (r 59). UCPR Form 151 is the approved affidavit confirming service of a notice of proceedings.
• The person served appears in the same way as a defendant under UCPR Part 6 Division 3 (r 57(4)).

• Do not post it. Personal service is mandatory for this notice (r 64).
• Annex everything the person needs to understand the claim; the form's paragraph 2 lists what to attach.
• A person who has consented to the order does not need to be served under r 39, but the consent must be filed (r 39(3) and (4)).