Practice Note SC Gen 23: AI and Affidavits in NSW Probate Applications

Generative AI tools have made it dramatically easier to produce formal-sounding legal documents. They've also created a new category of probate application rejection in NSW. The Supreme Court of New South Wales has responded to the proliferation of AI-drafted court documents with Practice Note SC Gen 23 — and executors who don't understand it are discovering the hard way that their applications are being returned.

What Practice Note SC Gen 23 Actually Says

Practice Note SC Gen 23 was issued by the Supreme Court of New South Wales to address the use of artificial intelligence — specifically large language models like ChatGPT, Gemini, and similar tools — in drafting affidavits and witness statements filed with the court.

The core prohibition is clear: generative AI must not be used to draft the content of affidavits or witness statements. This applies to probate applications just as it does to civil litigation. The Affidavit of Executor (Form 118) and any supplementary affidavits filed with the court are both covered.

The reason for the prohibition is not that AI produces bad writing. It's that affidavits are sworn statements. When you swear an affidavit before a Justice of the Peace or an Australian Legal Practitioner, you are attesting that the contents are true and correct based on your own knowledge and belief. An AI model cannot have personal knowledge of the deceased, the Will, or the estate's circumstances. Using AI to generate sworn content creates a fundamental problem: the document purports to be your personal statement, but the words are not yours.

There is a secondary concern the court has also flagged: AI tools sometimes generate plausible-sounding but entirely fabricated legal citations. An AI model might confidently cite a case or rule that does not exist. In a court document, that is not merely an error — it can constitute misleading the court.

What the Practice Note Requires

Since August 2023, virtually all uncontested probate applications in NSW have been processed through the NSW Online Registry. The Practice Note SC Gen 23 requirements apply to these applications. Specifically:

If AI was used in any capacity in drafting documents, the filing must include a statement disclosing:

• That AI was used
• What it was used for
• A confirmation that the deponent (the person swearing the affidavit) has verified the accuracy of all information and citations contained in the document

If AI was used to draft the substantive content of an affidavit or witness statement, the application will be rejected. There is no cure for this short of redrafting the affidavit and refiling.

If AI was not used, no disclosure statement is required — but best practice is to ensure the affidavit genuinely reflects your personal knowledge and is drafted or reviewed by someone who understands the legal requirements.

The Distinction That Matters: Summary vs. Sworn Content

The Practice Note does not prohibit all AI use. The distinction the court draws is between using AI for procedural orientation versus sworn substantive content.

Using AI to understand what probate is, to research what forms are required, or to get a general summary of the NSW probate process is not prohibited. That's research.

Using AI to write the actual text of your Affidavit of Executor — the sworn statement describing your identity, your relationship to the deceased, the nature of the Will, the circumstances of the death, and your claim to administer the estate — is prohibited.

If an AI model drafts the words that you then sign under oath before a Justice of the Peace, you've signed a document you didn't write. The Supreme Court takes that seriously.

How Registrars Identify AI-Generated Content

Probate registrars reviewing applications are trained to identify AI-generated text. AI-produced affidavits often share recognizable patterns: overly formal phrasing, generic structure, filler phrases ("It is important to note that..."), and an absence of specific personal detail. An affidavit that sounds like a legal template rather than a personal statement is flagged for review.

If a registrar suspects AI-generated content was used without disclosure, or was used to generate sworn content, the application is paused and a requisition is issued. The executor then has 21 days to respond. Depending on the nature of the issue, the response may require filing a fresh affidavit or providing an explanatory statement about how the document was prepared.

A failed response — or a failure to respond within 21 days — can result in the application being dismissed entirely.

What Executors Should Do

The practical implication for self-represented executors is straightforward:

1. Write your Affidavit of Executor in your own words, based on your own knowledge of the deceased and the estate. The form is not creatively demanding — it asks you to state facts you already know.

2. Use AI tools only to understand the process, not to generate the document itself.

3. If you use any AI tool at any stage of your preparation, disclose it in your filing and confirm that you've personally reviewed and verified the contents.

4. Before filing, have the completed affidavit reviewed by a Justice of the Peace or a solicitor who can confirm it is correctly prepared and properly sworn.

The Affidavit of Executor (Form 118) requires specific information in a specific structure. The safest approach is to work from the official UCPR form, completing each section from your own records — the Will, the Death Certificate, correspondence with asset holders — rather than asking an AI model to generate the narrative.

Why This Matters More Than You Might Think

A single requisition related to Practice Note SC Gen 23 compliance adds weeks to your probate timeline. On top of the standard 60 to 83 business day processing window, a requisition and supplementary affidavit can push the total to five or six months before the Grant is issued.

During that time, the estate's assets remain locked. Banks, share registries, and NSW Land Registry Services all require the sealed Grant before taking action. Beneficiaries wait. And in the worst case — if the application is dismissed — the executor must start over.

Understanding Practice Note SC Gen 23 before you draft a single word of your affidavit is among the most practical time-saving steps a self-represented executor can take.

The New South Wales Probate Process Guide includes a plain-English walkthrough of the Affidavit of Executor — what to include, how to structure it, and what the court is actually looking for — so you can draft it correctly the first time without triggering a requisition.

See more New South Wales guides →