Updated 25 October 2026
CM Law's Ultimate 50 List - Probate Problem #25: Can a Probate Decision Be Appealed?
Yes, some probate decisions can be appealed in New South Wales. However, the correct response depends on what has gone wrong. A challenge to a judge’s decision, an application to revoke a grant and an application to remove an executor involve different questions and procedures. Choosing the right approach matters when estate money is at risk and deadlines are running.
Christine Manolakos has dealt with an executor misappropriating estate funds and obtained his removal, followed by the appointment of administrators to preserve the estate. That experience highlights the importance of identifying both the legal problem and the immediate protection required.
1. Identify the decision or conduct being challenged
An appeal generally asks a higher court to correct an error in an existing judgment or order. An appeal from a Supreme Court judge’s probate decision will ordinarily be considered by the NSW Court of Appeal. Some decisions require permission, called leave to appeal. Registrar decisions may instead be subject to review by a judge under a different procedure.
A newly discovered later will may require an application to revoke the existing grant and prove that will. Misuse of money after probate may require the executor’s removal, accounts and recovery proceedings. A claim for additional provision from an estate is another distinct claim. The Supreme Court’s contested probate guidance explains why will validity and family provision must be distinguished. A fresh application is not automatically a way to reopen issues already finally decided.
Leave may be required for interlocutory orders, which deal with issues before the final resolution, and for certain final decisions. The need for leave depends on the particular orders and statutory rules. A large overall estate does not necessarily settle that question.
There is no single deadline covering every probate dispute. Under the usual Court of Appeal procedure in Part 51 of the Uniform Civil Procedure Rules, a notice of intention to appeal must be filed and served within 28 days after the relevant material date. Properly doing so generally allows three months from that material date to file and serve the appeal or leave application.
Without that step, the usual period is 28 days. The three months does not run from the notice of intention, and that notice does not itself commence an appeal. Your solicitor must check the applicable rules, orders and date calculation. An extension requires an application and is discretionary; negotiations do not stop time running.
3. An appeal needs a demonstrated error
Disagreeing with the result is insufficient. Potential grounds include applying the wrong legal test, making an appealable factual error, or denying a party a fair opportunity to present their case. The grounds must explain how the alleged error affected the orders. An appeal is generally a rehearing on the existing record, rather than an opportunity to start the entire case again.
Further evidence is not automatically admitted. Section 75A of the Supreme Court Act 1970 imposes additional requirements, including special grounds for further evidence following a hearing on the merits, subject to exceptions. A solicitor should assess its relevance, why it was not previously available and the applicable test. Later executor misconduct does not, by itself, establish that the original judge made an error.
4. Christine on replacing an executor to protect the estate
In the matter Christine handled, the problem was an executor misappropriating estate funds. CM Lawyers obtained his removal and had administrators appointed to preserve the estate. The practical lesson is that obtaining probate does not give an executor unrestricted control over other people’s inheritance. The role carries obligations to administer the estate properly and account for its assets.
That example illustrates the difference between challenging a court decision and changing who administers the estate. Removal can protect the remaining assets while any accounting or recovery issues are addressed. It does not automatically restore missing money or decide every beneficiary’s entitlement. The appropriate replacement and the scope of their authority depend on the will, the estate and the court’s orders.
Replacing the executor does not, by itself, cancel a valid will or give the administrators the inheritance. Their authority is to administer within the grant and any court directions. Effective protection also requires a practical handover of financial records, control of accounts and information about outstanding liabilities. Any claim to recover funds must be assessed separately.
5. A real NSW case involving estate money
In Chick v Grosfeld [2012] NSWSC 1166, the Supreme Court considered an application to remove an executor who was also an accountant. White J found serious breaches, including transferring $85,040 from the estate account into the executor’s business working account. Although almost all of that money was repaid, repayment did not excuse the breach. The judgment also addressed misleading descriptions of transactions and excessive remuneration.
The Court concluded that proper administration had been put in jeopardy and that the grant should be revoked, with letters of administration with the will annexed granted to NSW Trustee and Guardian. This was a removal proceeding, not an appeal. It is a separate published case from Christine’s client example. Its relevance is the focus on protecting proper administration, rather than treating the executor’s original appointment as permanent.
6. Protect assets while the dispute is underway
The Court of Appeal’s guidance confirms that filing an appeal or leave application does not usually create a stay. A stay is an order suspending the operation or enforcement of the relevant decision. Where there is an immediate risk of money being transferred or property sold, ask about urgent relief rather than assuming an appeal will preserve everything.
Depending on the evidence, appropriate applications may seek restraints on dealings, production of accounts, or an administrator appointed during probate litigation. The Court’s administration checklist explains that administration pending litigation is a limited appointment which does not permit distribution. A full replacement grant is different. The proposed administrator’s consent, suitability and independence should be addressed.
Suspicion should be tested against records. Identify disputed transfers, dates, recipients and explanations already given. Ordinary administration expenses or justified delays should not automatically be labelled theft. Equally, evidence of unauthorised withdrawals should be raised promptly before further assets disappear.
Before probate is granted, a person with the necessary interest may have grounds to lodge a probate caveat. A caveat is not a general freeze on estate accounts and does not remove an executor after a grant. Using the wrong procedure can waste valuable time.
7. Prepare the application and understand possible outcomes
For an appeal, the work usually includes assessing leave requirements, identifying the orders challenged, preparing precise grounds, filing and serving the correct documents, and compiling the relevant judgment, transcript and exhibits. Written submissions and appeal books must comply with the rules and the Court of Appeal practice note.
The Court may dismiss an appeal, vary or set aside orders, substitute appropriate orders, or return issues for further determination. Success does not necessarily mean an immediate distribution. By contrast, an executor-removal application focuses on the evidence concerning administration and the arrangements needed for a suitable replacement. The Supreme Court’s complex probate guidance explains removal after a grant has issued.
8. Weigh the costs and act on the evidence
Obtain advice on prospects, urgency, likely legal work and the assets still available to protect. The estate does not automatically pay everyone’s legal costs. An unsuccessful party may face an adverse costs order, and an executor’s entitlement to reimbursement can be affected by misconduct. Mediation may help resolve practical issues, but it does not replace urgent protection where assets are at risk.
Bring the will, grant, judgment and orders, correspondence, available estate accounts and transaction records to your appointment. Include a dated chronology explaining what happened and when you learned of it. This helps distinguish a genuine appeal from an administration problem and identify the relief needed.
Contact Christine and the CM Lawyers probate disputes team promptly if you are considering an appeal or are concerned about an executor’s handling of estate funds. Early assessment can preserve procedural rights and help protect the estate before losses become harder to address.
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