The following information will help legal practitioners make sure that applications for representation in unusual matters are prepared properly from the outset and finalised as efficiently as possible.
Unusual applications include the following:
Grants to attorneys
Where the sole executor, or the person entitled to a grant of administration, is resident outside of Victoria, administration may be granted to an attorney. The grant is generally limited until the executor or person entitled to the grant obtains a grant, or in such other way as the Registrar directs. The original or a certified copy of the power of attorney together with a surety guarantee must be filed.
Grants to corporations
It is well established law that a corporation sole may obtain a grant of representation. However, unless authorised by statute (eg, Trustee Companies), a corporation aggregate may not obtain a grant because it cannot swear the necessary oath.
The disablement of a corporation aggregate (such as a public or private company) can not be overcome by allowing an officer of the corporation to take the oath. The practice in such cases is to make a grant (in testate cases) of administration with the will annexed to a personal nominee or 'syndic' of the corporation for the use and benefit of the corporation.
Grants are commonly made to syndics in cases where an executorial appointment, in favour of an individual fails, and the testator has disposed of their entire estate to a charity ' that is a corporation. Applicants in such cases are required to file the instrument of appointment of the syndic which must be under the seal of the corporation. Unless dispensed with, and only for good reason, a surety guarantee should be filed.
An application by a creditor may be made in cases where the deceased died testate or intestate. The application must be supported by an affidavit detailing the amount of the debt due from the deceased, particulars of the debt, together with such evidence proving the debt as may be appropriate. Generally, the Registrar will require the consent to the application of all those entitled to the grant in priority to the creditor.
Statutory wills (Court-made wills)
The Wills Act 1997 enables the Court to authorise the making of a will, or the revocation of a will, for a person who lacks testamentary capacity. The application may be made by any person, however leave of the Court is required in order to make the application. If the Court authorises the making of a will then the original will is signed by the Registrar, and sealed with the Court seal. The original is retained by the Registrar for safekeeping.
Requesting an administration account
In all cases where the Court grants representation, the person to whom the grant is made must file with the Court a true and just account verified by affidavit of the administration of the estate, when requested to do so by the Court or the Registrar.
Anyone who has sufficient interest in the estate can request the Registrar to require the executor or administrator to file an account. In determining the request, the Registrar considers the interests of the estate, the beneficiaries and the costs and inconvenience occasioned by the preparation of the account. On filing, the account is placed on the Probate Office file and is available for public search.
Revocation of grants
In circumstances where a grant has irregularly or unlawfully been obtained the Supreme Court (Administration and Probate) Rules 2014 make provision for proceedings to revoke a grant of representation. An application for revocation is made by summons in the proceeding in which the grant was made. Discovery of a later will, lack of testamentary capacity, and fraud in obtaining the original grant are common grounds for revocation.
Depositing wills for safekeeping
Wills can be deposited with the Registrar for safekeeping. Any will deposited must be in a sealed envelope, which has written on it:
- the testator's name and address (as they appear in the will)
- the name and address (as they appear in the will) of the executor(s)
- the date of the will, and
- the name of the person depositing the will.
A fee must be paid to deposit a will. The testator or the testator's solicitor must attend the Probate Office in person to deposit a will.
When an original will has been lost, or destroyed without the intention of revoking it, application can be made to prove a copy of such will. The order of the Court normally includes a direction that the grant be limited until the original will or a more authentic copy be proved.
Generally, where a will is in the hands of a testator and is not produced on their death, the Court can presume it was destroyed by the testator with the intention of revoking it. However, the presumption may be rebutted by proof that raises a higher degree of probability to the contrary.
Maximum number of executors
It is the general practice of the Court to not permit probate to be granted to more than four executors. It is regarded as unsatisfactory and inconvenient for the administration of the estate of the deceased.
Draftsperson receiving a benefit under a will
In circumstances where a draftsperson receives a benefit, a 'will' will not be admitted to probate unless it is established to the Court that the testator was capable of making the will, that they knew and approved of its contents, and that there was nothing in the way of undue advantage taken by the draftsperson. Medical evidence to establish the testamentary capacity of the testator at the time the will was executed, and affidavits of good conscience, are generally required.
Wills not executed in conformity with the Wills Act 1997 (informal wills)
Section 9 of the Wills Act 1997 allows the Court and the Registrar to admit to probate a defective document, which fails to comply with the usual formalities for the signing of a will. It also allows a duly executed will, which contains informal alterations, to be admitted to probate, including the alterations. The Court and/or Registrar must be satisfied that the deceased intended the document or alteration to be or form part of the will.
Alterations to existing wills
Where any obliteration, interlineation or other alteration to a will is not authenticated in a manner prescribed by the Wills Act 1997, the Registrar will require evidence to show that the alteration was made before execution, and will give directions as to the form in which the will is to be proved.
Wills executed in a foreign jurisdiction
A will is taken to be properly executed if its execution conforms to the internal law in force in the place:
- where it was executed
- which was the testator's domicile or habitual residence at the time the will was executed, or at the testator's death or
- of which the testator was a national, either at the date of execution of the will, or at the testator's death.
Executor dying before administration is completed
If executorial duties are outstanding at the death of a sole or last surviving executor, the Court has power (unless there is a chain of representation) to appoint an administrator with the will annexed to complete the administration.
Domestic partners and intestacy
Where a person dies intestate on or after 8 November 2001, "domestic partners" (including same sex partners) are able to share in the estate. Where a person is a domestic partner of the deceased at the time of death and where that person has lived continuously with the deceased for 2 or more years or is the parent of the deceased's child then the "domestic partner" is entitled to the "spouse's share" of the estate.
In determining if a domestic relationship existed all the circumstances of the relationship are taken into account, including any one or more of the following matters set out in section 35(2) of the Relationships Act 2008 '
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
If the deceased leaves both a spouse or registered domestic partner or registered caring partner and an unregistered domestic partner, the entitlement to the partner's share of the deceased's residuary estate is determined according to a distribution table set out in section 51A(1) of the Administration and Probate Act 1958.
Minors and intestacy
Grants cannot be made to persons who are under 18 years of age, but must be made to their guardians for their use and benefit until they are 18 years old, subject to any limitations or conditions the Registrar thinks fit. A minor aged 12 years or more may elect a guardian, otherwise the Registrar may assign a guardian. The Registrar will not assign a guardian unless satisfied that the proposed guardian is ready and able to undertake the guardianship.