The Supreme Court of NSW has a discretion to grant probate to only some of the executors named in any will, reserving leave to the other named executor(s) (non-proving executor(s)) to come in and apply for Probate at some future date, provided the non-proving executor(s) has not abandoned their role.

This discretion is typically exercised where the non-proving executor(s) is temporarily unavailable to make the application i.e. incapacitated through illness or outside the jurisdiction.

Where the other executors were granted probate and are registered on the folio of the Register, the later, non-proving executor(s) may be added to the folio of the Register as a registered proprietor by means of a Transfer form 01T and not by transmission application.

A transmission application by a new executor based on double probate will be referred to NSW LRS’ Legal Division.

Requisitions will be raised if a transmission application has been incorrectly lodged in lieu of a Transfer form 01T.
 

Published Date: October 2024