The following information helps make sure that applications for representation in more complex or unusual matters are prepared properly and finalised as efficiently as possible.
The information provided on this page is by way of information only. If you are filing a more complex application and you are unsure what you need to do, you are encouraged to obtain legal advice.
Click on the relevant statement below to find out more about what additional documents might be required in support of your application. Please note that in most instances information about wills also applies to codicils.
When an original will has been lost, or destroyed without the testator’s intention to revoke it, an application may be made to prove a copy of the will. In such circumstances the original of the most authentic copy of the will is to be filed with the Probate Office in place of the original will.
In all circumstances where proving a copy of the will an affidavit of due execution sworn or affirmed by the witnesses to the will must be filed.
Generally, where a person held their will but it can’t be found on their death, the Court will presume the testator destroyed it with intention to revoke it. An affidavit detailing the last known whereabouts of the original will and what searches have been completed to locate the original must be filed, along with affidavit evidence the plaintiff relies on to rebut the presumption of revocation.
An affidavit of due execution that establishes the date, or the range of dates between which, the will was executed must be filed. The affidavit must include details to support the date/s (for example, records of diary entries), and be sworn or affirmed by the witnesses to the will.
Section 9 of the Wills Act 1997 allows the Court and the Registrar of Probates to make a grant of probate or administration in relation to a document which fails to comply with the usual formalities for the signing of a will. The Court or Registrar must be satisfied that the deceased intended the document be their will.
Evidence by way of affidavit to establish that the deceased intended the document to be their will must be filed in support of the application. The Probate Office cannot provide advice on what information will be required as it will vary in each case. Typically, affidavit evidence at a minimum would address information about how the document was created and treated by the deceased, and whether the deceased had any conversations with respect of the document.
If the document has not been signed, the affidavit evidence must confirm the act of adoption in relation to the document and the date or date range between which the deceased adopted the contents of the document.
In all cases where an application is made in relation to a document pursuant to section 9 of the Wills Act 1997 evidence by way of affidavit establishing the testamentary capacity of the deceased at the time the document was signed or adopted must be filed.
If the document has been witnessed by one person, you will also need to add an additional paragraph to the affidavit in support stating the name and current whereabouts (if known) of that witness.
If the value of the estate is in excess of $3,000,000 then all persons who are affected by a decision under section 9 of the Wills Act 1997 may consent to the powers of the Court being exercised by the Registrar of Probates. If consent is not provided, then the application must be considered by a judicial officer of the Court. All consents must be exhibited to an affidavit of the plaintiff, and the affidavit must detail all those persons who would be affected, including information about any previous wills or whether the deceased would otherwise have died intestate.
If there is not sufficient evidence to make an application in relation to a document pursuant to section 9 (for example, there is no evidence available to confirm the deceased intended the document to be their will), you are not obliged to make an application in relation to the informal document. You should declare the existence of the document in any other application and explain why an application is not being made with respect of the document pursuant to section 9.
If you require further information, you are encouraged to obtain legal advice.
Section 9 of the Wills Act 1997 allows the Court and the Registrar of Probates to make a grant of probate or administration in relation to a document which has been altered not in accordance with the requirements for formal alteration. The Court or Registrar must be satisfied that the deceased intended the alteration to have effect on their will.
Evidence by way of affidavit to establish that the deceased intended the alteration to have effect on their will/codicil must be filed in support of the application. The Probate Office cannot provide advice on what information will be required as it will vary in each case. Typically, affidavit evidence at a minimum would address information about how the alteration was created and when it was made, and whether the deceased had any conversations with respect of the alteration.
In all cases where an application is made in relation to an altered document pursuant to section 9 of the Wills Act 1997 evidence by way of affidavit establishing the testamentary capacity of the deceased at the time the document was altered must be filed.
If the value of the estate is in excess of $3,000,000 then all persons who are affected by a decision under section 9 of the Wills Act 1997 may consent to the powers of the Court being exercised by the Registrar of Probates. If consent is not provided, then the application must be considered by a judicial officer of the Court. All consents must be exhibited to an affidavit of the plaintiff, and the affidavit must detail all those persons who would be affected.
If there is not sufficient evidence to make an application in relation to an altered document pursuant to section 9 (for example, there is no evidence available to confirm the deceased made the alteration with the intention of it having effect on their will), you are not obliged to make such application. You can seek to prove the document as originally executed and explain why an application is not being made pursuant to section 9 with respect of the alteration. If seeking to prove a will as originally executed a copy of the will that does not contain the informal alteration should be exhibited to the affidavit in support.
If you require further information, you are encouraged to obtain legal advice.
Section 17 of the Wills Act 1997 prescribes that a will is taken to be properly executed if its execution conforms to the internal law in force in the place:
• where it was executed; or
• which was the testator's domicile or habitual residence at the time the will was executed, or at the testator's death; or
• of which the testator was a national, either at the date of execution of the will, or at the testator's death.
If seeking to apply for probate or administration in relation to a will executed in the foreign jurisdiction, an affidavit sworn or affirmed by a legal practitioner competent to practice in the relevant jurisdiction detailing the relevant law in that jurisdiction and making comment on whether the will was validly executed according to that jurisdiction’s laws would usually be required in support of the application.
In circumstances where a draftsperson receives a benefit, an application for probate or administration may not be able to proceed unless it is established that the testator was capable of making the will, that they knew and approved of its contents, and that there was nothing in the way of undue advantage taken by the draftsperson.
An affidavit of good conscience that details in full the circumstances surrounding the drafting of the document, and affidavits that prove the deceased knew and approved the contents of the will prior to signing must be filed. Medical evidence in the form of an affidavit that establishes the testamentary capacity of the testator at the time the will was executed may also be required.
Section 3 of the Administration and Probate Act 1958 defines a renumeration clause as one that provides renumeration of, or a commission or fees to be paid to, an executor for executorial services.
Section 49A of the Wills Act 1997 provides that a renumeration clause is void unless the testator gave written informed consent to the inclusion of the clause prior to the will being executed.
If an application is made where such a clause exists in the will, an affidavit must be filed providing evidence that the testator gave written informed consent, exhibiting and filing any document proving consent was provided.
In the event the testator did not give written informed consent, this should be confirmed by affidavit and the executor should confirm their understanding that the clause is void and they will not be able to rely on the remuneration clause for payment from the estate.
If a person marries after they have made a will, section 13 of the Wills Act 1997 and section 16 of the Wills Act 1958, state that the will is revoked by the marriage. However, there are certain circumstances where a person’s will, or part thereof, is not revoked by their marriage. For example, the will is not revoked if it is made in contemplation of the marriage. The provisions of section 13 of the Wills Act 1997 applies to all wills made on or after 20 July 1998. Please see the relevant Act for full details.
If you require further information, you are encouraged to obtain legal advice.
If a person gets divorced after they have made a will, section 14 of the Wills Act 1997 and section 16A of the Wills Act 1958, state that any disposition to the divorced spouse and any appointment of the divorced spouse as an executor are revoked with the effect that the divorced spouse is taken to have predeceased the testator. There may be circumstances where these provisions do not apply. The provisions of section 14 of the Wills Act 1997 applies to all wills made on or after 20 July 1998, and wills made before that date where the divorce is on or after 20 July 1998. Please see the relevant Act for full details.
If you require further information, you are encouraged to obtain legal advice.
If an executor is unable to act, an affidavit outlining the reasons for the executor’s inability to act sworn or affirmed by that executor’s treating medical practitioner must be filed.
If an executor wants to renounce probate, and they have not intermeddled in the estate, a renunciation of probate form must be completed together with an affidavit of verification. A legal practitioner should explain the effect of the renunciation to the executor, then witness their signature and swear/affirm the affidavit of verification.
In circumstances where the sole beneficiary named in a will (or on intestacy) is mentally incapable of applying for a grant, and there is no provision in the will for a substituted executor to apply in the event the instituted executor is unable to act an application for letters of administration durante dementia may be made.
The executorial appointment clause must be read carefully to determine if any substituted executor has a right to apply, or whether this is the appropriate type of application to be made.
Further guidance can be found in the letters of administration durante dementia procedural guide.
Evidence by way of affidavit is to be submitted outlining why the grantee is not applying (for example, they have died or instructed an attorney under power). In addition, if the plaintiff is not named in the grant, evidence by way of affidavit is to be submitted establishing why the plaintiff has standing to make the application (for example, they are the donee of power of attorney or as the case may be).
Resealing a grant is a process where, following an application supported by affidavit, the Registrar of Probates will place the seal of the Supreme Court of Victoria on a grant that has been obtained in a court of competent jurisdiction specified in legislation. A reseal is often necessary when a person dies leaving assets in more than one jurisdiction, as a grant of representation made by a court outside of Victoria does not carry the authority to deal with assets within Victoria. Once a grant of representation is resealed in Victoria it is as effective as if the original grant had been obtained in Victoria.
Part III of the Administration and Probate Act 1958 permits the resealing of grants that are made in Australian states and territories and specified overseas jurisdictions. The full list of jurisdictions the Supreme Court of Victoria may reseal are:
| Alberta | Kenya | Quebec |
| Australian Capital Territory | Malaysia | Queensland |
| British Colombia | Manitoba | Saskatchewan |
| Colony of British Guiana | New South Wales | Singapore |
| Colony of Straits Settlements | New Zealand | South Australia |
| Federated Malay States | Norfolk Island | Tasmania |
| Fiji | Northern Territory | United Kingdom (includes the Channel Islands) |
| Gibraltar | Nova Scotia | Western Australia |
| Guyana | Papua New Guinea | |
| Hong Kong | Ontario |
An application for the resealing of a grant may be made by:
• the people who originally obtained the grant, or
• a person duly authorised by power of attorney.
It is common practice in Victoria for the legal practitioner representing the plaintiff to swear or affirm the affidavit in support of the application. The affidavit required in support can be generated within RedCrest-Probate. If the plaintiff resides outside of Victoria, a surety guarantee supported by an affidavit of justification may also be required for administration reseal applications.
In all cases either the original grant of representation, an exemplification, or a court sealed and certified copy of the grant, must be filed with the Probate Office for resealing. If an application is being made by a power of attorney the original or a certified copy of the power of attorney must be exhibited to the affidavit in support and filed on RedCrest-Probate.
Where a person has died without a valid will an application should be made for letters of administration (no will) by the closest surviving next of kin who is entitled to share in the estate. The right to share in an estate is based on a hierarchy of relationships.
Determining who is entitled to share in a deceased's estate where there is no valid will can be complex. Complete the questionnaire in relation to the deceased's relationships at the date of their death for guidance on who may be entitled to share in the estate, who should make the application and what to include in your affidavit in support.
An unregistered domestic partner is defined in section 3 of the Administration and Probate Act 1958 as a person who although not married to the deceased was living with the deceased at the time of their death on a genuine domestic basis, and had either been living in that manner continuously for a period of at least 2 years immediately before the deceased died, or is the parent of a child of the deceased that was under 18 years of age at the deceased’s death.
It must be established by way of affidavit whether having regard in particular to the matters referred to in section 35(2) of the Relationships Act 2008, the deceased left a domestic partner.
An affidavit of the unregistered domestic partner must be filed that includes information about:
• The dates and periods of the relationship
• The degree of mutual commitment to a shared life
• The nature and extent of common residence
• Whether or not a sexual relationship existed
• The degree of financial dependence or interdependence
• Any arrangements for financial support between the parties
• The ownership, use and acquisition of property, and
• The care and support of children (if any).
Independent evidence by way of affidavit sworn or affirmed by persons other than the purported unregistered domestic partner detailing the reputation and public aspects of the relationship must also be filed.
The Probate Office cannot provide advice on drafting the affidavit in support of the application. If you require further information, you are encouraged to obtain legal advice.
Where the sole executor, or the person entitled to a grant of administration, is resident outside of Victoria, administration may be granted to an attorney under a specific power.
The grant is generally limited until the executor or person entitled to the grant obtains a grant, or in such other way as the Registrar directs. The original or a certified copy of the power of attorney must be exhibited to the affidavit in support and filed together with a surety guarantee supported by an affidavit of justification.
It is well established law that a corporation sole (for example, a particular office holder) may obtain a grant of representation. However, unless authorised by statute (e.g. Trustee Companies), a corporation aggregate (for example, a public or private company) may not obtain a grant because it cannot swear or affirm an affidavit.
The inability for a corporation aggregate to swear or affirm an affidavit cannot be overcome by allowing an officer of the corporation to swear or affirm the affidavit. The practice in such cases is to make a grant of administration to a personal nominee or 'syndic' of the corporation for the use and benefit of the corporation.
Grants are most commonly made to syndics in cases where an executorial appointment in favour of an individual fails, and the testator has disposed of their entire estate to a charity that is a corporation.
Where an application is made by a syndic, the plaintiff is required to exhibit to the affidavit in support of the application and file the instrument of appointment of the syndic which must be under the seal of the corporation. It may also be necessary to file an ASIC search that confirms the instrument of appointment has been executed by someone with correct authority. Unless dispensed with, and only for good reason, a surety guarantee supported by an affidavit of justification should also be filed.
An application by a creditor may be made in cases where the deceased died with a will or without a will. The application must be supported by an affidavit detailing the amount of the debt due from the deceased, particulars of the debt, and must also exhibit evidence proving the debt as may be appropriate.
Generally, a grant will not be made to a creditor unless it can be demonstrated that the person/s who would otherwise be entitled to a grant are not willing to make an application. If the grant relates to a will, then all executors must either renounce probate or be otherwise unable to act. The Registrar will generally require the consent to the application of all those entitled to the grant in priority to the creditor. A surety guarantee supported by an affidavit of justification should also be filed.
Grants cannot be made to persons who are under 18 years of age. In circumstances where a minor beneficiary is entitled to share in an estate and there are no executors able to apply for probate, a grant of administration will usually be made to the natural, elected, or assigned guardian of the minor beneficiary. The grant that is issued will be expressed to be made for the use and benefit of that minor beneficiary until they attain the age of 18, apply for and obtain a grant.
If applying as the natural guardian of the minor beneficiary the affidavit in support should confirm the plaintiff is the natural guardian and that they have the care and control of the minor beneficiary. If applying to be assigned guardian, the affidavit in support should confirm why they are appropriate to be assigned guardian and exhibit any document they rely on to establish they are appropriate (for example, if custody orders have been made with respect of the minor and the minor is in their care).
Pursuant to the Supreme Court (Administration and Probate) Rules 2023 a minor aged 12 years or more may elect a guardian for the purpose of applying for administration. If such an application is made the election should be filed, along with an affidavit from the proposed guardian as to their willingness and fitness to undertake the guardianship. An affidavit of fitness from someone other than the applicant and consent of any natural guardian not applying should also be filed.
Where an application is made by a guardian, a surety guarantee supported by an affidavit of justification should also be filed.
For more information see rule 5.01 of the Supreme Court (Administration and Probate) Rules 2023.
If all persons who obtain a grant die before finalising the administration of the estate, a further grant may be issued in relation to the estate. Whom the grant is issued to, or has standing to apply, will depend on the nature of the original grant. If the original grant was probate and an executor had leave reserved or have other executorial rights under the will, they would apply for probate pursuant to leave reserved or probate pursuant to rights saved. If no-one is able to obtain a further grant of probate, a grant of administration must be obtained for the unadministered estate (either with will or with no will depending on the nature of the original grant).
A further grant will only be issued in relation to the estate if there are executorial or administrative duties remaining to be performed. The Probate Office cannot advise prior to filing an application whether there are executorial, administrative or trustee duties remaining. In the affidavit filed in support of the application the plaintiff must detail their standing to apply for administration, the details of the original grant, what has happened to the people who originally obtained the grant, and what executorial or administrative duties remain to be performed (for example, real property is still in the name of the deceased).
If probate was obtained in relation to the original deceased estate and a grant of probate is made in the estate of the last surviving executor who obtained a grant, a chain of representation may apply and no further grant will be necessary. For more information about the chain of representation see section 17 of the Administration and Probate Act 1958.
Section 7 of the Administration and Probate Act 1958 empowers the Court to grant probate or administration where satisfied, whether by direct evidence or on presumption, that a person has died. Generally, the common law principles established in relation to presumption of death apply following a person's disappearance for at least seven years.
Where an application is made on presumption of death, affidavit evidence must be filed in support of the application that establishes why the presumption applies. At a minimum, such affidavits would usually address:
• The last known sighting or whereabouts of the missing person;
• Confirmation that the missing person has not been heard from for a continuous period of not less than seven years;
• Details of the persons (if any) who would be likely to have heard from the missing person over that period;
• Confirmation that these persons (if any) have not heard from the missing person;
• Details of enquiries that have been made to discover the whereabouts of the missing person; and
• Depending on the facts and circumstances, further additional information may be required.
If you require further information, you are encouraged to obtain legal advice.
Any additional documents required in support of the application must be uploaded to RedCrest-Probate and filed as additional documents on the ‘upload documents and pay fees’ page. Choose the name of the documents from the drop-down list and attach a PDF of each. If filing the additional documents after the application has been filed, click on the application in ‘My applications’ and click on ‘File a further document’.
If you have another question and have not found the answer on this page, you might also want to look at our frequently asked questions about the Probate Office.