Notice to apply for probate (Form 138)

The Supreme Court explains that where an executor is unwilling or unable to apply for probate but will not formally renounce, Supreme Court Rules 1970 Part 78 r 55 lets any person require a named executor to take probate by filing and serving a notice to apply for probate (formerly called a citation to take probate). If they do not comply, the other executors can apply without them or, if they are the only executor, a beneficiary can apply for administration with the will annexed. Form 138 (formerly SCR Form 111) is that notice. It tells the executor that to comply they must, within 14 days after service (28 days if served outside NSW), file an answer saying they intend to apply (Form 139; the time limits are in r 56) and then pursue a probate application diligently, and that if they do not, their right as executor wholly ceases (Probate and Administration Act 1898 s 69).

When you need it

• The will names an executor who has not applied for probate and will not sign a renunciation (Form 123).
• You are a beneficiary under the will, a co-executor, a relative or a creditor of the deceased.
• You want either the executor to act or the way cleared for another applicant.

1. 1

   Court details and title

   The form is pre-set for the Supreme Court, Equity Division, Probate List; the case number is not applicable. Add the deceased's name and last address and your details under Prepared by.

2. 2

   Recipient and the death

   Insert the executor's name and address, then the deceased's name, residence, and place and date of death.

3. 3

   The will and your interest

   Paragraph 2 states the deceased left a will, annexed and marked A, appointing the recipient as executor or one of the executors. Annex a copy. Paragraph 3 states your interest: beneficiary, relationship to the deceased, or creditor.

4. 4

   Signature and further details

   Sign with your capacity and date, and give your address and an address for service in NSW (unless an exception in UCPR r 4.5(3) applies).

• Serve the notice on the executor. It is not filed to start proceedings.
• The executor has 14 days after service, or 28 days if served outside NSW, to file an answer (Form 139) in the Supreme Court registry and must then apply with reasonable promptness.
• If the executor does not comply, the later application must account for them. The Supreme Court says an application made by fewer than all the executors must explain why the others are not applying.

• Try asking the executor to sign a renunciation (Form 123) or an affidavit reserving leave first; the notice is for when they will do neither.
• Check the will's wording before relying on a substitute executor. The Supreme Court notes many wills only let a substitute act in specified events, such as the first executor dying.
• Where there is no executor and someone else has the prior right to administration, the matching notice is Form 136.