These documents may be used where the person who would normally apply for probate or administration is unable to do so because of mental incapacity and another person wishes to apply instead.
This page relates to applications where another person seeks a grant on behalf of the incapable person. It does not cover applications that may be made by State Trustees.
Use these documents if:
- the only executor and beneficiary named in a will is unable to apply because of mental incapacity; or
- the only person entitled to receive the deceased's estate is unable to apply because of mental incapacity.
Before making an application, check the will carefully to see whether another executor has been appointed to act if the first executor is unable to do so.
These documents are used when a person is applying for a grant because they would be entitled to receive part of the incapable person's estate if that person died without a will.
In most cases, the applicant should be one or more people who would be entitled to receive part of the incapable person's estate if that person died without a will.
This is usually the case even if the incapable person has made a will or has an administrator appointed to manage their affairs.
If you need help identifying who would be entitled to receive part of the incapable person's estate if they died without a will, you may wish to use the Probate Office Intestacy Questionnaire.
If the person who would normally be entitled to apply is incapable of doing so, the Court will usually require evidence explaining:
- that the person is mentally incapable of applying for the grant; and
- why the proposed administrator should be appointed.
The documents below will usually be required in addition to the usual documents filed in support of the application.
This affidavit should be completed by the treating doctor of the person who is incapable of applying for the grant.
The affidavit provides evidence about the person's inability to act as executor or administrator.
This document records the agreement of the people who would be entitled to receive part of the incapable person's estate if they died without a will.
The document should usually be completed by every person who would be entitled to receive part of the incapable person's estate if they died without a will and who supports the application.
This affidavit should be completed by a person seeking to be appointed administrator.
The affidavit allows the proposed administrator to provide information about their experience, responsibilities and personal circumstances relevant to administering the estate.
This affidavit should be completed by a person who knows the proposed administrator well and can provide information about their suitability to administer the estate.
The affidavit should be based on things the person personally saw, heard or experienced.
This affidavit should be completed by the person applying for the grant where additional information is required about the application.
The affidavit should identify the persons who would be entitled to receive part of the incapable person's estate if they died without a will.
The Probate Office Intestacy Questionnaire may assist in identifying the persons who should be included.
Because the proposed administrator is not entitled to receive part of the deceased's estate, the Court will usually require a surety guarantee before a grant is made.
A surety guarantee is a promise by another person to protect the estate and its beneficiaries if the proposed administrator does not properly carry out their duties.
If loss is caused to the estate because of something the proposed administrator does or fails to do, the person providing the surety guarantee may be required to compensate the estate.
The following documents may be required.
Surety Guarantee
This document should be completed by a person who agrees to act as surety for the proposed administrator.
Affidavit of Justification for Surety Guarantee
This affidavit supports the surety guarantee and should be completed by the person providing the surety guarantee.
The affidavit asks for information about the person's financial circumstances and ability to meet the obligations of the surety guarantee.
If there is a will
The application will be for letters of administration (with will annexed).
When preparing the application in RedCrest-Probate:
Plaintiff(s) Details tab
Select as the reason the plaintiff can apply:
A person entitled to share in the estate of the sole beneficiary of the will if they died without a will.
Executor(s) Not Applying tab
Add the name of the incapable executor and select as the reason they are not applying:
Unable to Act
Advertise tab
Add the following further information:
[name of incapable person] is the sole beneficiary named in the will of the deceased and this application is made by the plaintiff in their capacity as a person who would be entitled to share in the estate of [name of incapable person] if they were to die without a will.
If there is no will
The application will be for letters of administration (no will).
When preparing the application in RedCrest-Probate:
Plaintiff(s) Details tab
Select as the reason the person can apply:
A person entitled to share in the estate of the sole person entitled to share in the estate if they died without a will.
Advertise tab
Add the following further information:
[name of incapable person], the [relationship] of the deceased, is the sole person entitled to share in the estate of the deceased and this application is made by the plaintiff in their capacity as a person who would be entitled to share in the estate of [name of incapable person] if they were to die without a will.
Important information
These documents are provided for information only and do not constitute legal advice.
The Probate Office can provide these documents but cannot advise you what information you should provide or assist you to complete them.
If you need assistance, you should obtain legal advice.