Have you recently been asked to sign a contract and are wondering whether legal advice is necessary? If you are considering signing a contract, it is important to ensure that you understand exactly what you are agreeing to. Before you sign on the dotted line, you should take the time to carefully read through the contract as well as having the contract reviewed by a professional.

What constitutes a contract?

A contract is an agreement between two or more parties, and may be made orally or in writing. Wherever possible, a contract should be made in writing, to reduce the likelihood of a dispute arising in the future.

A written contract is a legally binding document that contains various conditions and warranties. You should enter a contract freely and voluntarily, and only if you are comfortable with its terms.

A contract may relate to various types of agreements, including:

What is the significance of a contract?

There are many significant factors that comprise a legally binding contract. The main factors to be aware of include, but are not limited to:

A contract is legally binding on you. If you are signing on behalf of your company, the contract is legally binding on your company.
A contract may impose obligations on you, including that you do or do not do certain things. This may include that you are liable to pay money, or a number of other requirements or restrictions.
A contract may contain clauses that limit the liability of one of the parties, meaning you may be unable to seek compensation or damages if problems arise.
Even if you have previously agreed to something verbally or in writing, a signed contract will typically supersede these agreements and may vary what you previously agreed to.
The consequences of breaching a contract, even if inadvertent, can be very costly.
Terminating a contract once it is signed is possible, however, must be done strictly in accordance with the terms outlined in the contract.

How would legal advice help?

There are various benefits to having your contract reviewed by a legal professional before entering into an agreement. Some of these benefits include:

Their expertise and ability to review and interpret your contract. This includes reviewing and interpreting the fine print and any ‘legalese’ to ultimately ensure the contract accurately records your agreement.
Reducing the likelihood of problems or disputes arising as a result of all parties understanding the contract terms from the outset, and by being provided with an opportunity to discuss any potential problems. Any issues or changes to the contract terms are far better addressed prior to signing.
A contract may contain terms that are unfair to you, which may otherwise go unnoticed without legal advice. You can read more about unfair contract terms at Consumer Affairs Victoria.

Overall, an experienced lawyer can assist in negotiating the terms of the contract to ensure that your interests are best protected.

How can Sharrock Pitman Legal help?

If you are considering signing a contract, we highly recommend that you obtain legal advice. We have an Accredited Specialist in Commercial Law and we are able to carefully review your contract to ensure that your interests are adequately protected and to advise you of your options. Feel free to contact our Commercial Law team on 1300 205 506 or alternatively fill in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Why you should get legal advice before signing a contract

What constitutes a contract?

What is the significance of a contract?

How would legal advice help?