Notice to affected persons (SCR Part 78 rule 42 (SCR Form 106E)) (Form 135)

Where an application for probate or administration includes a document that does not meet the formal requirements for a will, the Court must decide whether the deceased intended it to operate as their will, an amendment or a revocation. Supreme Court Rules 1970 Part 78 r 42 requires the plaintiff to serve a prescribed notice on each person whose interests may be affected by that decision, unless the person is a caveator or has consented to the grant. Form 135 is that prescribed notice. It carries two numbers because Part 78 forms were once numbered in the Supreme Court Rules (this one was SCR Form 106E) and are now approved forms in the UCPR series (Form 135).

When you need it

• Your probate or administration application relies on an informal testamentary document, such as an unsigned, unwitnessed or electronic will (SCR Pt 78 Div 6).
• A person would be worse off if the informal document is admitted and they have not consented to the grant. People who do consent can sign Form 134 (consent of affected person) instead, and the consent is filed (r 42(2)(b) and (3)).
• You want the affected person to be bound by the Court's decision on the informal document (r 45).

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 name and last address of the deceased, and the filing details.

2. 2

   Address the notice

   Insert the name and address of the person being served.

3. 3

   Annex the documents

   Annex copies of the summons (or statement of claim) marked A, the affidavit of executor or affidavit of applicant for administration marked B, and the informal testamentary document marked C.

4. 4

   Check the response time paragraph

   The notice tells the person that unless their appearance is received within the time allowed, the Court may decide the matter in their absence, and that they will be bound by the orders made. The rule sets that time at 14 days if served in NSW and 28 days if served outside NSW (r 43(4)).

5. 5

   Sign and add party details

   The plaintiff or their solicitor signs and dates the notice and completes the plaintiff's address and an address for service. The address for service must be in NSW unless an exception in UCPR r 4.5(3) applies.

• Serve the notice on each affected person. Rule 42 itself does not prescribe a method; the Supreme Court's probate checklist lists Form 41 as the affidavit of service for notices under r 42.
• File any consents relied on instead of a notice (r 42(3)). If the affected person is under a legal incapacity, a consent cannot be used and service does not take effect until a tutor is appointed (r 42(4)).
• The Court can dispense with service if the person cannot readily be identified or found, or to save expense in the circumstances (r 42(5)).
• An affected person who enters an appearance in time becomes a defendant, but only for the part of the proceedings about the informal document and any other part the Court directs (r 44).

• Paragraph 4 of the current form refers to service outside New South Wales and the Australian Capital Territory, while r 43(4) refers only to service outside NSW. Check the timing against the rule when serving interstate.
• Late appearances need the Court's leave (r 43(5)), so diarise the response date from the date of service.
• The current form's filing details say Filed for caveator, although the notice is given by the plaintiff. Complete the filing details for the party actually giving the notice.