Originating Application - Probate Ex Parte (Form PROB1)

Chapter 25 of the Uniform Civil Rules 2020 (SA) governs the Supreme Court's testamentary causes jurisdiction. Under rule 351.10, unless a rule provides otherwise, a proceeding under the chapter is started by lodging an originating application in the prescribed form supported by an affidavit in Form PROB34. PROB1 is the ex parte version, used where no other party needs to be named; PROB2 is the inter partes version. Ordinary applications for probate or letters of administration are not made on PROB1: they are lodged as online applications on the court's Electronic System (note to r 351.10). PROB1 is for the applications the rules send to an originating application, such as leave to swear to death (r 353.4), admitting an informal will to proof (r 353.5), admitting a copy of a will (r 353.7), rectification (r 353.10) and advice or directions to an executor (r 357.7). The 'Act' referred to is the Succession Act 2023 (r 351.2).

When you need it

• You need an order before a grant can be applied for, for example leave to swear to the death of a person (r 353.4) or an order admitting an informal document or a copy of a will to proof (rr 353.5, 353.7).
• You seek rectification of a will under section 22 of the Succession Act 2023 (r 353.10).
• An executor, administrator or trustee seeks the court's advice or direction (r 357.7), or Public Trustee seeks approval to act in multiple capacities (r 357.11).
• A minor or person acting for a minor applies for a court-authorised will (r 352.2), where no other party needs to be joined.

1. 1

   Fill in the action number and applicants

   Insert the action number if one has been allocated, then each applicant's full name and address, and the solicitor's name and address if a lawyer acts.

2. 2

   Identify the deceased or proposed testator

   Give the full name and last residential address of the deceased person, or of the proposed testator for a statutory will application.

3. 3

   State the orders sought in full

   Set out each order sought, including the section of any Act or rule relied on. The rules give worked examples of orders, such as admitting a document marked XXX1 to probate (r 353.5) or rectifying a clause (r 353.10).

4. 4

   Refer to the supporting affidavit and list other documents

   The form states that the material facts are in the accompanying affidavit (Form PROB34). List any other documents provided or required, such as a consent of a proposed executor (Form PROB8) or an affidavit of assets and liabilities (Form PROB46) where the rule calls for it.

• Unless the court orders otherwise, all probate applications and documents must be filed through the court's Electronic System (CourtSA), and payment is accepted by credit card only (r 351.5).
• Original testamentary documents and an affidavit exhibiting an original will must be physically filed in the Probate Registry (r 351.14(2)). For personal applicants, originals and sworn documents go in an A4 envelope with the system-generated coversheet to the Registry at 1 Gouger Street, Adelaide (r 351.8(5)).
• The court may order that notice be given to interested persons, or dispense with service (r 351.11). A person served who opposes must file a Response (Form PROB3) within 14 days after service (r 351.12).
• A filing fee applies. Check the current probate fees on the Courts Administration Authority fees page.

• Mark an original will exhibited to an affidavit exactly as rule 351.14 requires, on the back of the document, signed and dated by the person taking the affidavit.
• A personal applicant (no lawyer) must include a certificate of identity certified by an authorised witness, with certified identification documents attached (r 351.8(1)).
• If the matter becomes contested, the Registrar will ordinarily refer it to a Justice or Associate Justice and may send it to the civil jurisdiction (r 353.1(4)). Consider PROB2 from the start if someone needs to be a respondent.
• Registry officers can give procedural guidance but not legal advice (r 351.8(9)).