Australian Capital Territory Current Regulations Australian Capital Territory Current Regulations(1) An affidavit made by a person supporting an application by the person for grant of representation for the estate of a deceased person must state the following:
(a) the date of death or, if the date of death is not known, the circumstances of death and the place of death of the deceased person;
(b) if the applicant is an individual—that the applicant is an adult;
(c) the relationship (if any) of the applicant to the deceased person;
(d) if a death certificate for the deceased person is annexed to the affidavit—that the deceased person is the person named in the death certificate;
(e) if the application is made, for the first time, more than 6 months after the date of the deceased person's death—the reasons for the delay;
(f) whether the deceased person left property in the ACT;
(g) if the deceased left property in the ACT—the estimated gross value of the property in the ACT;
(h) whether the deceased person considered that the person's domicile was in the ACT;
(i) if the application is made by the applicant as a guardian of a person to whom rule 3116 (Grant of administration—grant to child) applies—evidence that the applicant is the person's guardian;
(j) if the application is made by the applicant as a creditor of the deceased person—the following particulars:
(i) that the applicant is a creditor of the deceased person;
(ii) the amount of the debt owed by the deceased person to the applicant;
(iii) the particulars of the debt;
(k) that, if the applicant is granted probate of the will or administration of the estate, the applicant will administer the estate according to law and, if required, will give an account of the administration to the court;
(l) that notice of intention to make the application was published online on the ACT Supreme Court website, and the date the notice was published;
(m) brief details of any responses to the publication of the notice from creditors of the estate.
Note 1 See
•
approved form 3.11 (Affidavit of applicant for probate)
AF2022-1
.
• approved form 3.12 (Affidavit of applicant for administration—with will) AF2022-2
.
• approved form 3.13 (Affidavit of applicant for administration—no will) AF2022-3
.
Note 2 The following provisions may require additional matters to be dealt with in the supporting affidavit:
• r 3007 (3) (b) (Grant of administration—notice of intention to apply to be served on non-applicant domestic partner or next of kin)
• r 3008 (3) (b) (Grant of administration—notice of intention of creditor to apply to be served on domestic partner and next of kin)
• r 3009 (3) (b) (Grant of representation—when notice of intention to apply to be served on public trustee and guardian).
(2) If the applicant is applying for grant of probate or letters of administration with the will annexed for the estate of the deceased person, the affidavit must also state the following:
(a) the document accompanying the application and signed in the margin by the applicant and the person taking the affidavit is the last will of the deceased person;
(b) if the application is for grant of probate—the applicant is the executor, or 1 of the executors, named in the will;
(c) the will has not been revoked;
(d) the applicant is, or is not, aware of the existence of any other document claiming to contain the testamentary intentions of the deceased person;
(e) the steps taken to find out whether there is any other document mentioned in paragraph (d);
(f) how the applicant identified the will;
(g) the names of the people who attested the will;
(h) the names and addresses (if known) of the people named in the will as the executors;
(i) if the application is not made by the executor or all of the executors of the will—the reason the executor is not, or the other executors are not, applying for probate;
(j) whether the deceased person married or entered into a civil union or civil partnership after the will was made and, if so, the date of the marriage or civil union or civil partnership and the name of the spouse or civil union partner or civil partner;
(k) if under the “b title="A1968-11">Wills Act 1968
, section 20A (Effect of termination of marriage, civil union or civil partnership), the deceased person's marriage, civil union or civil partnership is taken to have been terminated—the date of the termination;
Note 1 The “b title="A1968-11">Wills Act 1968
, s 20A (4) provides that a marriage is taken to be terminated if—
(a) the marriage ends by divorce under the Family Law Act 1975
(Cwlth); or
(b) a decree of nullity is made under the Family Law Act 1975
(Cwlth) in relation to the marriage; or
(c) the marriage is annulled in accordance with the law of a place outside Australia if the annulment is recognised in Australia under the Family Law Act 1975
(Cwlth).
Note 2 The title="A1968-11">Wills Act 1968
, s 20A (4) provides that a civil union is taken to be terminated if the civil union ends under the title="A2012-40">Civil Unions Act 2012
, div 2.4 (otherwise than on the death of a party to the civil union).
Note 3 The “b title="A1968-11">Wills Act 1968
, s 20A (4) provides that a civil partnership is taken to be terminated if the civil partnership ends under the href="http://www.legislation.act.gov.au/a/1994-28" title="A1994-28">Domestic Relationships Act 1994
, div 4A.4 (otherwise than on the death of a party to the civil partnership).
(l) whether the deceased person was an adult when the person made the will or whether the person made the will in accordance with the href="http://www.legislation.act.gov.au/a/1968-11" title="A1968-11">Wills Act 1968
, section 8 (Children—testamentary capacity).
(3) If the applicant is applying for letters of administration without the will annexed for the estate of the deceased person, the affidavit must state the following:
(a) the deceased person did not leave a will;
(b) the applicant is, or is not, aware of the existence of any document claiming to contain the testamentary intentions of the deceased person;
(c) the steps taken to find out whether the deceased person left a will and whether there is any other document mentioned in paragraph (b);
(d) the names of everyone with a beneficial interest in the estate;
(e) the interest of everyone with a beneficial interest in the estate.
(4) If a statement required to be included in the supporting affidavit can only be made (or would be more appropriately made) by a person other than the applicant, the statement must be included in a separate supporting affidavit made by that person and filed with the application.
(5) If a supporting affidavit contains statements of information and belief, the person making the affidavit must state the sources of the information and the reasons for the belief.
(6) The following documents must be annexed to the supporting affidavit (or a relevant supporting affidavit):
(a) any death certificate (or a certified copy of any death certificate) issued for the deceased person under the href="http://www.legislation.act.gov.au/a/1997-112" title="A1997-112">Births, Deaths and Marriages Registration Act 1997
or a corresponding law of another jurisdiction;
(b) any document (other than the last will of the deceased person) claiming to contain the testamentary intentions of the deceased person that is in the possession of the applicant or other person making the affidavit;
Note Possession is defined in the dictionary.
(c) an inventory of the property of the estate;
(d) a copy of the notice (or each notice) required by rule 3006 (Grant of representation—notice of intention to apply to be published online etc);
(e) if the application is made by the applicant as a creditor of the deceased person—documents sufficient to prove the deceased person's debt to the applicant;
(f) for each person with a beneficial interest in the estate—documents sufficient to prove the person's identity and the relationship (if any) of the person to the deceased person.
Note See also div 3.1.4 (Validity and form of wills).