Originating Application - Probate Inter Partes (Form PROB2)

Chapter 25 of the Uniform Civil Rules 2020 (SA) governs the Supreme Court's testamentary causes jurisdiction. Unless a rule provides otherwise, a proceeding under it is started by lodging an Originating Application in the prescribed form supported by an affidavit in Form PROB34 (r 351.10). PROB1 is the ex parte version; PROB2 is the inter partes version, used where respondents or interested parties are named. Some rules prescribe only PROB2 because a party must be joined: an application for a court-authorised will for a person lacking testamentary capacity under section 7 of the Succession Act 2023, where the proposed testator is joined as respondent (r 352.3); a subpoena to bring in a testamentary document or attend for examination, where the person is joined (r 353.3); an executor's remuneration application, where the affected beneficiary is joined (r 357.9); an application to pass over a person entitled to a grant (r 354.11); and a dispute between people equally entitled to a grant (r 354.12). Others allow either form, such as admitting an informal will (r 353.5) or a grant ad colligenda bona (r 355.4). Contentious actions about a grant or its revocation are brought in the civil jurisdiction instead (r 351.1(2)).

When you need it

• You need an order in the testamentary causes jurisdiction and another person must be joined as respondent or interested party.
• You apply for a will to be authorised for a person who lacks testamentary capacity (r 352.3).
• You seek a subpoena for a person to produce a testamentary document or attend for examination (r 353.3), or commission or remuneration as executor, administrator or trustee (r 357.9).
• Not for an ordinary application for probate or letters of administration, which is made as an online application on CourtSA (note to r 351.10).

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

   Name the respondents and interested parties

   Give each respondent's full name and address, and each interested party's. The rules say who must be joined for particular applications, for example the proposed testator (r 352.3(6)) or the beneficiary affected by a commission claim (r 357.9(2)).

3. 3

   Identify the deceased or proposed testator

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

4. 4

   State the orders sought in full

   Set out each order, including the section of any Act or rule relied on. Several rules give worked examples of the wording, such as r 353.10 for rectification.

5. 5

   Refer to the affidavit and list other documents

   The form states that the material facts are in the accompanying affidavit(s) in Form PROB34. List other documents provided or required, such as a Form PROB8 consent of a proposed executor, a Form PROB46 affidavit of assets and liabilities, or PROB7 consents.

• Unless the court orders otherwise, file through the court's Electronic System (CourtSA); payment is by credit card only (r 351.5). A filing fee applies: check the probate fees page.
• A personal applicant must include a certificate of identity certified by an authorised witness (r 351.8(1)). Original testamentary documents and affidavits exhibiting them must be physically filed in the Probate Registry (r 351.14(2)).
• The court may order who is to be given notice, or dispense with service (r 351.11). A person served who wishes to oppose or make submissions must file a Response in Form PROB3 within 14 days after service (r 351.12).
• The Registrar ordinarily hears these applications but will usually refer contested ones to a Justice or Associate Justice and may send the action to the civil jurisdiction (r 353.1(4)).

• The PROB2 notice to respondents still refers to filing a notice of address for service within 14 days. Rule 351.12 now requires a Response in Form PROB3 within 14 days, so respondents should follow the rule.
• Mark any original will exhibited to an affidavit exactly as r 351.14 requires, on the back of the document, signed and dated by the person taking the affidavit.
• Registry staff can give procedural guidance but not legal advice (r 351.8(9)).