A grant of probate in NSW takes one of two forms. A grant in common form is the standard administrative grant made by the Registrar where the will is uncontested. A grant in solemn form is a judicial determination made by a judge after contested proceedings, and it binds all interested parties.
Most NSW estates only ever see a common form grant. Contested estates need a solemn form grant to achieve finality. Empower Probate Lawyers acts on both sides of contested probate proceedings across NSW. This guide explains the procedural and practical differences and when each form applies.
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The Two Forms of Probate in NSW
The distinction between common form and solemn form probate is inherited from the English ecclesiastical courts and is now embedded in Part 78 of the Supreme Court Rules 1970 (NSW). It is not a relic. The distinction has real consequences for how easily a grant can later be revoked, how much weight it carries, and how the proceedings are run.
Both forms are issued by the Supreme Court of NSW. Both confer on the executor the authority to administer the estate. The difference lies in how the grant is made, who decides, and what it binds.
In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, Lindsay J set out the modern framework for understanding the distinction. That case remains the leading NSW authority and is referenced in the Supreme Court’s Probate List Standard Form of Orders.
What Is a Grant of Probate in Common Form?
A common form of grant is the default NSW grant. It is issued where no party disputes the validity of the will, and no caveat has been filed.
How a common form grant is made
The application is commenced by Summons (UCPR Form 111) supported by the Affidavit of Executor. There is no defendant, no statement of claim, and no one is cited to see the proceedings. The application is processed administratively by the Probate Registrar based on the documents filed.
Who decides
The Supreme Court Registrar examines the application, raises requisitions where necessary, and issues the grant on satisfaction of the procedural requirements. A judge is not involved unless a problem arises.
Effect of a common form grant
A common form grant is a valid order of the Court and an instrument of title that allows the executor to deal with the estate. The grant binds asset holders such as banks, share registries, and NSW Land Registry Services.
Revocability
A common form of a grant is revocable. A party seeking revocation must explain their failure to caveat before the grant and must demonstrate a real question about the will’s validity. The bar for revocation is meaningful but not insurmountable.
Typical timeline and cost
Uncontested matters are usually granted within six to twelve weeks of filing, sometimes longer where requisitions are issued. The filing fee is value-based on the gross estate. Legal costs are modest by comparison to contested matters.
What Is a Grant of Probate in Solemn Form?
A solemn form grant is a judicial determination made by a judge after contested proceedings. It is reserved for cases where the validity of the will has been challenged or where the parties want a final, binding determination that cannot be reopened later.
How a solemn form grant is made
Solemn form proceedings are commenced by Statement of Claim, not Summons. The party seeking the grant is the plaintiff. Caveators and other interested parties are joined as defendants. The Court hears full evidence, including witnesses where required, before delivering judgment.
Who decides
A judge of the Supreme Court of NSW determines the matter, not the Registrar. The Court applies the test set out in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [249], which requires that all interested persons have been given a fair opportunity to be heard and that the Court is satisfied, on the evidence, that the will represents the deceased’s last testamentary intentions.
Effect of a solemn form grant
A solemn form grant operates as a judgment in rem. It binds the parties to the proceedings, anyone duly served with formal notice, and anyone of full capacity who had an interest and notice of the proceedings but chose not to intervene. A person who was not given notice and had no opportunity to participate is not necessarily bound by the grant. In Lindsay J’s words, the object of the application is to secure a judgment binding on all persons who might be entitled to challenge the validity of the will.
Revocability
A solemn form grant is far harder to revoke than a common form grant. The Court applies principles of finality strictly. Revocation is generally limited to four narrow exceptions, addressed below.
When a Matter Moves From Common Form to Solemn Form
A probate application begins in common form. It moves to solemn form when something happens to trigger contested proceedings.
The most common triggers are:
- A caveat requiring proof in solemn form is filed under Rule 78.68 of the Supreme Court Rules 1970 (NSW). The caveator challenges the will on grounds such as lack of testamentary capacity, undue influence, or improper execution. The executor must then prove the will in solemn form
- A general caveat against the grant under Rule 78.66 is filed and not withdrawn, forcing the matter into contested proceedings
- The executor elects to proceed in solemn form to achieve finality, particularly where the family relationships are difficult or the will is unusual
- The Court directs solemn form proceedings because of doubts apparent on the face of the application, such as significant unexplained changes from a prior will
Once the matter moves to solemn form, it is case-managed by the Registrar in Probate under Practice Note SC EQ 7 and the procedural rules in Part 78. The pathway to hearing follows the standard civil litigation timetable: pleadings, evidence, mediation, and trial.
Key Differences at a Glance
| Feature | Common Form | Solemn Form |
| Who decides | Probate Registrar | Judge of the Supreme Court |
| How commenced | Summons (UCPR Form 111) | Statement of Claim |
| Defendants | None | Caveators, interested parties |
| Evidence | Affidavit only | Full hearing, witnesses if required |
| Binding effect | On asset holders | Binds the world in rem |
| Revocability | Revocable on showing of validity question | Limited exceptions only |
| Typical timeline | 6 to 12 weeks | Many months to over a year |
| Cost | Modest | Substantial |
When a Solemn Form Grant Can Be Revoked
A solemn form grant is intended to be final. The exceptions to this finality are narrow:
- A later valid will is discovered that displaces the will admitted to probate in solemn form
- The testator married or divorced after executing the will, which affects the will’s status under the Succession Act 2006 (NSW) and was not before the Court when the grant was made
- The grant was obtained by fraud, such as a forged will or false evidence given at the hearing
- There was a procedural irregularity or unavoidable accident that prevented a party with an interest from participating in the proceedings
Even where one of these exceptions is established, the Court retains discretion as to whether the grant should actually be revoked. Practical considerations such as the stage of administration, prejudice to beneficiaries, and the conduct of the parties all weigh in the balance.
How a Specialist NSW Probate Lawyer Helps With Contested Matters
The decision to push a matter into solemn form is strategic. Executors sometimes elect solemn form to head off future revocation risk. Caveators sometimes force solemn form to force the will-maker’s evidence into Court. Beneficiaries on either side need to understand what they gain and what they pay for.
Our team at Empower Probate Lawyers focuses exclusively on probate, estate administration, and will disputes. Our director, Oliver Morrisey, holds a Master of Laws in Wills and Estates (High Distinction) and has over a decade of experience acting in both contested probate and probate and will disputes matters across NSW. We help executors and caveators with:
- Advising on whether to seek a solemn form grant based on dispute risk and finality goals
- Drafting and responding to caveats under Rule 78.66 and Rule 78.68
- Conducting contested probate proceedings through case management and hearing
- Preparing applications for a standard grant of probate in common form, and pivoting to solemn form where the situation demands
Speak With a NSW Probate Lawyer About a Common or Solemn Form Grant
If you are an executor facing a caveat or a beneficiary considering challenging a grant, call Empower Probate Lawyers on 1300 481 161. Specialist advice. Free initial consultation. Deferred fee arrangements available in eligible cases.
Frequently Asked Questions
Do most NSW estates need a solemn form grant?
No. The overwhelming majority of NSW estates are administered through a common form grant issued by the Probate Registrar. Solemn form grants are reserved for contested matters or for cases where the executor wants the finality that only a judicial determination can deliver.
Can a common form grant become a solemn form grant later?
Yes. If a party with sufficient interest applies to revoke a common form grant and the matter is contested, the Court can re-grant probate in solemn form following a full hearing. This is sometimes called “proving the will in solemn form” after a common form grant.
Who can challenge a common form grant in NSW?
Any person with a sufficient interest in the estate can apply to revoke a common form grant. This typically includes beneficiaries under the will admitted to probate, beneficiaries under a prior will, and persons who would inherit on intestacy if the will is set aside.
How long does a solemn form proceeding take in NSW?
Contested probate proceedings under Part 78 of the Supreme Court Rules 1970 (NSW) generally take many months and can extend over a year for complex matters. The timeline includes pleadings, evidence-gathering, mandatory mediation, and a hearing. Settlement at mediation avoids most of the hearing-stage cost and delay.
Is a solemn form grant always more expensive than a common form?
Yes. Solemn form proceedings involve a Statement of Claim, full evidence, often multiple affidavits and expert reports, mediation, and potentially a judge-led hearing. The legal costs run into tens of thousands of dollars at a minimum and can be substantially more for complex matters.
Can a solemn form grant ever be revoked?
Yes, but only in limited circumstances: discovery of a later valid will, post-execution marriage or divorce affecting the will, fraud in obtaining the grant, or procedural irregularity that prevented a party from participating. The Court retains discretion even where an exception is established.
