ByLawyers News and Updates

Probate – NSW

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From 1 August 2023 most applications for an uncontested grant of representation must be applied for and filed online. The lodgment platform is available via the Probate tab on the Supreme Court website, and on the NSW Online Registry website. New users are required to register for an account.

The online process provides guidance as to the evidence required for a grant to be determined. It is intended to facilitate uncontested probate matters being processed quickly and accurately.

The new system applies also to applications for Reseal, and Letters of Administration.

Under the new process applicants are no longer required to lodge notice of an intended application at least 14 days prior to filing a summons. Instead, a notice of intended application will automatically be generated when an online application is filed.

The current paper forms will no longer be used. The new Probate system will generate the summons, affidavit of executor or administrator, inventory of property, and grant based on the information provided in the online application. These documents are then downloaded, executed, and filed via the online system. The system prompts for and allows additional affidavit evidence to be uploaded.

Rather than the previous process where applicants provided the court with a pre-paid envelope for the sealed copies to be returned when the grant is made, the new Probate system will generate these documents with a digital seal on each page. Copies of the grant will be immediately available for download once the grant issues.

Copies of testamentary documents, such as wills and codicils, are scanned and uploaded into the new Probate system. The originals of testamentary documents must still be filed with the court registry, either personally or by mail. They must be accompanied by a coversheet. See our previous News & Updates post: Wills coversheet.

The court has advised that  the registry will continue to accept paper-based applications up to and including 1 September 2023 to assist with the transition.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) guides have been updated accordingly.

Succession & Probate Lists – NSW

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The New South Wales Supreme Court has introduced combined Succession & Probate lists, for family provision claims and contested probate applications.

The new list replaces the Family Provisions Claims list previously managed by Justice Hallen, who is retiring. The court has never previously had a specialist list for contested probate matters.

Re-issued Practice Note SC EQ 07 – Succession & Probate Lists updates the procedures applicable to family provision and contested probate matters in the Court.

Key points include:

  • These types of matters will be managed and heard in the Succession & Probate List.
  • Directions and the hearing of interlocutory motions will be dealt with on Fridays, with Monday directions being phased out.
  • There will be two judges managing the list, initially Justices Meek and Lindsay.
  • There will be two judges available for the list on Fridays.
  • If possible, family provision applications whether combined with probate or not, will be dealt with by one judge and probate matters will be dealt with by the other judge.
  • Most interlocutory motions for matters in the list will require leave except urgent matters which can be listed by arrangement.
  • Subpoenas and Notices to produce for matters in the list will require leave.
  • Mediation for all matters in the list will be court annexed by default, unless the parties consent to private mediation or the Court otherwise orders.
  • Requirements for the content of the plaintiff’s affidavit in Family Provision matters updated.

The Court has indicated that the emphasis of the new list will be on strict case management and efficiency, in accordance with the overriding principal of just, quick and cheap disposal of the real issues in the proceedings under Section 56 Civil Procedure Act 2005 .

By Lawyers Family Provision Claims (NSW) and Supreme Court (NSW) – Equity Division guides have been updated accordingly, including the Retainer Instructions precedents which prompt practitioners to obtain the necessary instructions and documents required by the practice note.

Online Court Protocol – Supreme Court Equity Division – NSW

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New and revised Practice Notes dealing with Online Court Protocol in the Equity Division of the NSW Supreme Court have been added to the By Lawyers Litigation commentaries.

Our NSW litigation author has amended the Acting for the Plaintiff and Acting for the Defendant commentaries in our Supreme Court – Equity Division Guides to incorporate these important procedural changes brought in by the recent amendments to Practice Note SC Eq 1 and the introduction of the new Practice Note SC Eq 14. These Practice Notes apply concurrently to all cases in the Equity Division General List that are case managed by the Registrar in Equity.

Important points to note about the new provisions of the Practice Notes include:

Online Court

  • All matters will be managed via Online Court.
  • If the Registrar in Equity determines that certain matters are to be heard in open court the times and location of directions hearings may change and the Practice Note requires that the daily Court list should always be checked.
  • Failure to submit requests or consent orders in the Online Court in accordance with the time frames set out in the Practice Note will be treated as a non-appearance in the proceedings, upon which the Registrar will issue a notice and a subsequent failure may result in the proceedings being dismissed.

Mediation/ADR

  • The initial timetable should consider reference and/or mediation.
  • If the parties have not attempted to resolve the dispute through mediation or other appropriate ADR procedures, they should expect a mediation date to be allocated prior to or when a matter is set down for hearing.
  • If the Court makes an order for court annexed mediation, the parties are to attend upon the Registrar in Equity, using the Online Court, within 24 hours of the order being made to obtain a date for mediation.

Consent Orders

  • Agreement will be reached between the parties on a timetable for the preparation of matters for trial and/or reference and/or mediation and Consent Orders. Evidence of this agreed timetable will be transmitted to the Registrar using the Online Court by no later than 2:30 PM on the second day preceding the Online Court sitting.
  • All Consent Orders will be made using Online Court; emails will not be accepted. The text of any orders the parties are seeking must be fully set out in the Online Court request.

Trial Length Estimates

  • When parties are seeking to have the matter set down for hearing, the parties will be expected to give full details of the trial, to ensure that the estimate of the length of the hearing is accurate. Annexure B to Practice Note SC Eq 1 provides for a Direction the Court will give requiring practitioners to monitor the estimate for the length of the trial.
  • If the hearing is likely to be longer than five days the trial date will be set in consultation with the Chief Judge in Equity.

The move to case management via the Online Court in the Equity Division is a significant shift in Court process and one of which all practitioners need to be well aware and prepared to embrace. The up to date and practical focus of the By Lawyers Supreme Court Guides ensures it is easy to understand and comply with the new procedures.

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