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Probate

Grants of Representation

Probate

  • Grant of Probate (with a valid Will)
  • Forms of Grants of Probate:-
    • For example: to substituted executor, instituted executor, leave reserved, renounced
  • Renunciation and verification
  • Revocation

Letters of Administration (intestacy)

  • Types of Grants:-
    • Letters of Administration with the Will annexed (Administrator of Estate proves a valid Will)
    • Letters of Administration (no valid Will)
  • Distribution of estate:-
    • Spouse and children
      • ss 51 and 52 Administration and Probate Act 1958 (Vic)
    • Single
    • Domestic partner eg de facto, same sex
      • Statute Law (Relationships) Amendment Act 2001 (Vic)
      • S 51A Administration and Probate Act 1958 (Vic)
  • Surety Guarantees
    • Applications, dispensation and Affidavits of Justification

Specialist Grants

  • Copy of or reconstructed Will (Will missing or destroyed)
  • Letters of Administration ad colligenda bona (collecting and preserving deceased's goods)
    • Usually used in an emergency to appoint an Administrator to deal with property subject to waste or danger
    • Re Cohen [1975] VR 187
  • Letters of Administration de bonis non (of goods not administered)
    • Usually used when the sole Administrator cannot be located or dies during estate administration or if an Executor dies breaking the chain of representation
    • In the Will of Alan (dec'd) [1912] VLR 286
  • Grant durante minore aetate (during minority)
    • Usually used if the Executor named in the Will is under 18 years of age
    • Re Riordan (dec'd) [1961] VR 271
  • Letters of administration durante absentia (during absence)
    • Usually used when the Executor is not residing within Victoria after 1 year from the date of death
    • S 24 Administration and Probate Act 1958 (Vic)
  • Letters of Administration pendente lite (pending litigation)
    • Usually used to enable due administration of the estate during court proceedings
    • Salter v Salter (1896) P 291
  • Letters of Administration ad litem (purposes of suit)
    • Usually used when the estate is required to be represented in court proceedings
    • Greenway v McKay (1911) 12 CLR 310
  • Letters of Administration durante dementia (mental incapacity)
    • Usually used if the Executor cannot act due to mental incapacity
    • In the Estate of Boyd (1855) 11 VLR 117
  • Probate or Letters of Administration cum testamento annexo (with the Will annexed)
    • Usually used for proof in solemn form (ie, made by a Judge rather than by the Registrar of Probates)

Recognising Foreign Grants in Victoria

  • Reseals:-
    • Interstate:- New South Wales, Queensland, South Australia, Western Australia, Tasmania
    • Foreign:- countries include: United Kingdom (inc Northern Ireland and Channel Islands), New Zealand, Fiji, Alberta, British Columbia, Gibraltar, Guyana, Hong Kong, Kenya, Manitoba, Malaysia, Nova Scotia, Ontario, Papua New Guinea, Saskatchewan and Singapore
      • s 88 Administration and Probate Act 1958 (Vic)
  • Exemplifications

Documents Required to Assist with Grants of Representation

  • Affidavit of Due Execution
  • Affidavit of Medical Practitioner
  • Affidavit of Interpreter