Storage of completed Probate applications – access and exemplifications

Grants of Probate and the Will

The grant of probate is an order of the Court that confers, or confirms, title to estate property upon the executor or administrator. The Supreme Court of NSW Registry maintains a register of all grants of probate issued by this Court. The grant includes a sealed copy of the grant page (see form 112), any will and codicils and the inventory.

Following a grant the Court retains the original Will and all documents filed in support of the application but will return the original death certificates with the grant, upon request. Such request should be made at the time of filing your application otherwise file retrieval and administrative fees may apply.

NSW State Archives has a catalogue of probate files issued by the Supreme Court from 1800 to 1976. Court files retained by State Archives are considered to be open for public access, but in practice not all records are available due to their sensitivity or the fragility of a record. State Archives only provides a copy of fragile records in most cases.

You can contact the State Records Authority of NSW directly on PH (02) 9673 1788 or search the Museums of History NSW, State Archives Collection Search to request access or a copy of these files.

The probate files held at State Archives are catalogued by series:

• Series 1: April 1817 to c. May 1873
• Series 2: 1873 to 1876
• Series 3: 1876 to c.1890
• Series 4: c. 1890 to c. 1976 (last packet no Series 4-828673)
• Series 5: 1989 only is held by State Records
  

Access to a Will, after a grant of Probate – the Will is a public document

The Probate and Administration Act 1898 provides that the Will of the deceased, once admitted to probate, is a public document and that anybody is entitled to apply for a copy of it from the Supreme Court of NSW, provided they pay the relevant fee. It is generally best however, to contact the person in possession of the document for a copy, before approaching the Court.

Section 54 of the Succession Act 2006 provides that the person, who has possession or control of the Will of a deceased person must allow certain people to inspect it, or be given copies of it, at the expense of the requesting person.

The people who are entitled to view and/or obtain a copy of the Will under s 54 are:

• a person named in the latest will;
• a person named as a beneficiary in an earlier will;
• the surviving spouse, de facto or issue (child, grandchild etc) of the deceased person;
• a parent or guardian of the deceased person;
• a person who would be entitled under intestacy (if the deceased person had no Will);
• any parent or guardian of a minor named in the will or entitled under intestacy;
• any person (including a creditor) who may have a claim against the estate of the deceased;
• the manager of the person's estate immediately prior to their death, appointed under the NSW Trustee and Guardian Act 2009; or
• any attorney under an enduring power of attorney made by the deceased person.

Access to the inventory of property, after a grant of Probate

For records retained by the Supreme Court from 1977 to present, the inventory of property is only available to executors, administrators, residual beneficiaries, and applicants who have commenced proceedings in contested family provision claims (case number must be advised). The inventory of property is not available to other applicants, including creditors and potential claimants.

A person or institution holding assets of the estate are entitled to verify that the relevant asset was disclosed in the inventory of property before allowing the transfer of that asset.

Access to the affidavit of executor, after a grant of Probate

The affidavit of executor is not a public document and access is not usually granted. A beneficiary may however apply for access but would need to set out strong reasons for why access should be granted. Access to this document will be considered in accordance with Practice Note SC Gen 2 . You will need to complete a non-party access to court file form to request access.

Exemplifications

An exemplification is a sealed, court authorised copy of the grant. It has the authority of an original grant and can be used by the executors or administrators if the original is lost, in an application for a reseal or where a court authorised copy is required.

After a grant has been made all beneficiaries are entitled to an exemplification of the grant, which includes the Will. The inventory of property will only be attached if the applicant is a residuary beneficiary. An executor or administrator may be asked by some asset holders, such as banks, to provide a certified copy of the grant. An authorised signatory such as a solicitor or justice of the peace may certify a copy of a grant. If an exemplification or court authorised copy is required an application will need to be made to the Court.

To apply for an exemplification complete the application for exemplification (PDF, 93.2 KB) and either: email it to the registry at sc.probate@justice.nsw.gov.au; post it to GPO Box 3, Sydney NSW 2001 or lodge it in person at the registry. A fee is payable for this service. Generally it takes the Court 14 days to process your request.

Access to Probate files

Practice Note SC Gen 2 applies to probate files with the following additional information:

(b) A residual beneficiary of a will, to which probate has been granted, must seek leave to access the Court file and supply sound reasons. All beneficiaries named in the Will are entitled, once a grant has been made, to an exemplification of the grant with the Will annexed. Residuary beneficiaries are also entitled to a copy of the inventory of property.

(c) Other applicants will only be granted access in accordance with clause 7 of Practice Note SC Gen 2 and in the ordinary course:

1. If access is sought to a contested probate file, access will be limited to the pleadings, any document read in open Court and a copy of the judgment. It does not include the inventory of property, or the affidavit of executor or applicant (or any document that includes a copy of the inventory); 
2. If access is sought to an uncontested probate file, access will only be given to the summons, the front page of the grant and a copy of the will. Access to other material will only be allowed if a Registrar or Judge finds that exceptional circumstances exist.