COVID-19 - Updates, Webinars and Resources

Do you 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:


CALL: (03) 8561 3318

Engaging a builder to build your home can be daunting – you are committing a significant amount of time and money into developing a valuable asset. In such circumstances, the last thing you want is a dispute with your builder that will take significant time to resolve and extensive legal costs.

The following actions are recommended steps for you to take when engaging or dealing with a builder who is undertaking domestic building work at your property:

1. Seek legal advice prior to signing the building contract

Obtaining legal advice prior to entering into a Contract can be invaluable. A conference with a lawyer can save you significant stress and expense at a later date, and ensure that you are well-advised regarding both your own rights and the rights and obligations of your builder. It can not only ensure that you know what to expect going forward, but also that you are prepared to deal with any disputes or issues that may arise in the manner that best protects your interests. Legal advice can also provide you with a better understanding of the risks associated with certain contractual clauses, and place you in a better position to negotiate any amendments that may provide protection moving forward.

2. Ensure payments are only made once progress stages have been completed

The progress stages of the building works will be set out in your domestic building contract. The contract may either adopt the schedule set out in the Domestic Building Contracts Act 1995 (‘the Act’) or you and your builder may deviate from the schedule by agreement. Builders are not legally allowed to make requests for payment of the progress stage or a portion thereof prior to the stage being completed. Where any such requests have been made by your builder, you are not required to pay.

To ensure there is no confusion as to when a stage has reached completion, you should make sure that you understand what work is included in each relevant stage prior to commencing the building works. In this respect, as well as a general sense, communication is key to avoiding disputes.

3. All variations should be in writing

Most domestic building contracts will stipulate that any variations to the building works or contract terms are required to be in writing, and will provide specifications as to how variation requests are to be made by either you or the builder. Despite this, parties frequently request and/or agree to variations outside of these specifications. This often leads to disputes regarding the cost or details of the variations at a later date. In order to avoid such disputes, you should ensure that all variation requests, whether they are made by yourself or the builder, are made in writing and in accordance with any contractual requirements.

4. Liquidated damages should be a genuine estimate of your loss if the works are not completed on time

A common dispute that occurs between owners and builders is the delayed completion of building works. Where the completion date has passed and the works have not been completed, most building contracts will provide that the owner is entitled to liquidated damages for the amount specified in the contract.

Many owners and builders either do not provide an amount for liquidated damages or provide a minimal amount, such as $200 per week. This is generally an insufficient amount to compensate the owner for their loss, as there may be other subsequent costs associated with the delay, such as:

  • any rent paid for accommodation as a result of the delay, or
  • any loss of profits due to an inability to tenant the property.

The amount should not be such that it could be considered a penalty, but rather should be a genuine estimate of your loss as a result of the delay. Ensuring that liquidated damages are a genuine estimate of your loss will not necessarily result in the prompt completion of the works however they will ensure that you are appropriately protected in the event of delayed completion. This may also serve as incentive for the builder to ensure the works are completed on time.

5. Follow contract notice and termination procedures

Finally, in the event that a dispute arises between yourself and the builder where you feel it is necessary to terminate the contract, it is imperative that the contract is terminated in accordance with the contract terms. Incorrect termination of the contract may amount to a repudiation of the contract, which, if it is accepted by the builder, can potentially give rise to a claim against you for damages. For these reasons, it is a good idea to seek legal advice prior to issuing any notice of default under the contract.

How can Sharrock Pitman Legal help?

If you require advice on a Domestic Building Contract or a dispute with a builder, please feel free to email litigation@sharrockpitman.com.au or call 1300 205 506. As Accredited Commercial Litigation Specialists experienced in construction law, we are able to provide you with advice regarding your options, in addition to guiding you through the steps that are appropriate in your circumstances.

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 one of our lawyers

,

.

Rhiannon Carpenter

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Litigation [Courts & Tribunals]

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 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 placed on the Supreme Court website for at least 14 days prior to any application.

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 does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can 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. 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

Download our FREE legal guide to Probates & Estates in Australia

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Could your business do with a “health check”?

Fill in our survey about the legal health of your business and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

Could your Not for Profit organisation do with a "health check"?

Fill in our survey about the legal health of your organisation and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.