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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:


CALL: (03) 8561 3318

When an individual’s expectations in a Will are not met, this can lead to conflict with the Executors and other family members. Binay Prasad, Senior Associate and Accredited Specialist (Wills & Estates) explains.

Introduction

A Will is not always set in stone. If a person believes they have not received adequate provision, they may claim a greater share of the estate. This is known as a ‘Part IV’ claim. The relevant law is Part IV of the Administration and Probate Act (Vic)1958.

Part IV claims are the most common type of Will disputes. They are also known as ‘family provision’ claims or ‘testator family maintenance’ (TFM) claims.

Who can make a Part IV Claim?

Contrary to popular belief, not everyone can make a Part IV claim.

 The law sets out strict categories of ‘eligible persons’. They include:

  • The spouse or de facto partner of the deceased; or
  • A child or step-child of the deceased;

The following persons are also eligible:

  • A grandchild of the deceased;
  • A registered caring partner of the deceased; or
  • A member of the deceased’s household.

Claims by these persons are less common, as the person must demonstrate that they were financially dependent on the deceased. A former spouse or de facto partner is also eligible, if they had not yet reached a family law settlement with the deceased.  

What does the Court consider?

A Part IV claim will not always be successful. The law sets out certain factors for the Court to consider when deciding whether a claimant should receive further provision. These include:

  • Whether the deceased had a moral duty to provide for the claimant;
  • The deceased’s reasons for providing less to the claimant;
  • The relationship between the deceased and the claimant;
  • The character and conduct of the claimant;
  • The claimant’s personal and financial circumstances;  
  • Whether the claimant was financially supported by the deceased;
  • Whether the claimant had contributed to the deceased’s estate;
  • The size and assets of the estate; and
  • The personal and financial circumstances of the other beneficiaries.

What is the process?

A Part IV claim can be resolved through negotiation, without going to Court.

If negotiations are unsuccessful, then a Part IV claim is commenced in either the County Court or the Supreme Court.

The law states that a claim must be commenced within six (6) months from the date of the Grant of Probate. However, the Court can grant an extension of time to the claimant, in certain circumstances.

The Court requires the parties to participate in mediation. The majority of mediations are successful, where the parties will agree on the amount for the claimant.

If mediation is unsuccessful, then a trial will proceed before a Judge. After hearing the evidence of all parties, the Judge will decide whether the claimant is entitled to a greater share of the estate.

How can Sharrock Pitman Legal assist?

When an individual’s expectations in a Will are not met, this can lead to conflict with the Executors and other family members.

If you would like further information on Part IV claims, please contact our specialist Wills and Estates team on 1300 205 506.

 

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

,

.

Binay Prasad

For further information contact

Binay Prasad

Binay is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Specialist in Wills and Estates law, having been accredited by the Law Institute of Victoria. He is part of our Wills and Estates group and deals with Wills and Estates planning and Probate. For further information, contact Binay on his direct line (03) 8561 3329.

More on

Probate & Estates

When an individual’s expectations in a Will are not met, this can lead to conflict with the Executors and other family members. Binay Prasad, Senior Associate and Accredited Specialist (Wills & Estates) explains.

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.

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.

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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