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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

If you have had accommodation, event or other bookings cancelled due to COVID-19 lockdowns or restrictions, you may be wondering whether you are entitled to a refund.

Alternatively, perhaps you are wondering what would happen to a future booking in the event that a lockdown is announced.

There is no legal requirement on businesses to provide a full refund in the event of cancellation. This includes in the event of government-mandated lockdowns or other restrictions. However, the Australian Consumer Law provides protection to consumers and requires that businesses must treat you fairly. According to the Australian Competition and Consumer Commission (‘the ACCC’), fair treatment of consumers in the COVID-19 context means that businesses must act in accordance with their terms and conditions at the time of booking. This means that the terms and conditions of your booking are what will determine your rights to a refund or other compensation in the event of cancellation.

What should I do?

1. Read the Terms and Conditions of your booking

Firstly, you should review the terms and conditions of your booking as this is what will largely determine your rights to a refund, credit or voucher. The terms and conditions may be contained in a booking confirmation email or on the booking provider’s website.

Look out for the following examples of provisions that may be included in the terms and conditions:  

  • Specific COVID-19 cancellation terms - this may clearly set out your entitlement (or lack thereof) to a full or partial refund, credit or voucher in the event of a lockdown or other government restrictions.
  • General cancellation terms – this may set out your entitlement (or lack thereof) to a full or partial refund, credit or voucher in the event of cancellation. Your entitlements in the event that you cancel the booking voluntarily might differ from your entitlements in the event of a cancellation by the business itself.
  • Force majeure – a force majeure clause might specify what should happen in the event that certain unforeseeable circumstances occur.  However, this may or may not include pandemics.

If there are no terms and conditions in that cover this area, then the booking provider might seek to retain your deposit on the grounds of “frustration”.  A contract becomes frustrated if there are events outside of the parties’ control that make it impossible to carry out the contract. This is a common law principle in Australia and the booking provider may seek to rely on this to end the contract and release themselves from any obligation to return money to you. We recommend that you seek legal advice if this seems to be the case.

If the terms and conditions of your booking do not require the business to provide you with a full refund or other compensation, then they are not obliged to do so.

2. Contact the booking provider

The next step is to contact the booking provider directly to confirm their COVID-19 cancellation policy or clarify the terms and conditions. Some businesses may not have updated their terms and conditions to cover COVID-19 and their internal policies may be more flexible than what is written in their contractual terms and conditions. It may be best to let them know the outcome you are hoping for and try to negotiate the best solution.

If the business has not yet cancelled your booking but you are planning to cancel, it is particularly important to contact the business before doing so as this may constitute a change of mind and limit your entitlements. You can read more about this on the ACCC website page COVID-19 (coronavirus) information for consumers.

3. Seek professional advice

If you are unable to negotiate a solution directly with the booking provider or if the terms and conditions are unclear, consider consulting a legal professional for further advice. If you believe that the booking provider has not met their terms and conditions, or otherwise led you to believe you would be entitled to a refund, they may be in breach of the Australian Consumer Law. A legal professional can review the terms and conditions and provide you with further advice, as well as assist in enforcing your rights.

How can Sharrock Pitman Legal help?

Our team of Accredited Specialists in Commercial Law and Commercial Litigation can assist you by advising on your rights and taking action on your behalf. Please feel free to contact us on 1300 205 506 or by email at litigation@sharrockpitman.com.au.

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

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Commercial Law

If you have had accommodation, event or other bookings cancelled due to COVID-19 lockdowns or restrictions, you may be wondering whether you are entitled to a refund.

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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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.