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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

Could the coronavirus pandemic be classified as an event so unforeseeable and so unavoidable as to allow parties to negate their duties under a contract?

Force Majeure

Further, how can you best prepare your business to ensure that you are protected if a similar event occurs in the future? We outline below what constitutes a ‘force majeure’ event and other factors to consider when examining contracts under these circumstances.

Originating from civil law systems, the term 'force majeure', or ‘legal force’, is a construct usually seen in contracts that govern the relationship of businesses or individuals over a long period of time. This is because these clauses allow for parties to free themselves from obligations under the contract if certain unforeseeable and unavoidable events take place. It is not uncommon for various events to be specified under these provisions such as natural disasters or strikes, the prevailing factor being that it is ‘beyond all reasonable control of the parties’.

These provisions in a contract require the failure of one or both parties in fulfilling their usual obligations because such an event has prohibited them from doing so. It is very likely that if a contract includes a clause that refers to pandemics, it would cover the recent coronavirus outbreak. However, it is still important to consider each contract and each business relationship on a case-by-case basis.

If there is no force majeure clause, can the contract be classified as 'frustrated'?

In Australia, if there is no provision made for force majeure events, a Court may decide that the contract has become ‘frustrated’. This doctrine stems from High Court cases such as Brisbane City Council v Group Projects Proprietary Limits [1979] HCA 54 and Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24. These cases note that the critical issue is whether a certain event has resulted in a situation that is fundamentally or radically different from the situation first contemplated when the contract was entered into.

However, frustration is often difficult to establish. There must be severe impacts and failure by one or both parties to fulfil their obligations, and thus it is unlikely that a delay or an increase in expense will rise to such threshold.

What can businesses do now?

We suggest that businesses retain all documents relating to the impact of the COVID-19 pandemic so far, and keep a record of various factors including, bu tnot limited to:

  • any measures taken by the business;
  • the consequences on profits;
  • services delivered; and
  • employment impacts.

How can Sharrock Pitman Legal assist?

If you have any further queries, please do not hesitate to contact us on 1300 205 506 or by email at sp@sharrockpitman.com.au. If you have any queries regarding the impact of COVID-19 on your business operations, please see our COVID-19 resources page on our website or contact a member of our Commercial Litigation or Commercial Law teams.

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

,

.

Nicola Voss

For further information contact

Nicola Voss

Nicola Voss is a lawyer at Sharrock Pitman Legal.

She is a lawyer in our Litigation practice. For further information, contact Nicola on her direct line (03) 8561 3315.

More on

Litigation [Courts & Tribunals]

Could the coronavirus pandemic be classified as an event so unforeseeable and so unavoidable as to allow parties to negate their duties under a contract?

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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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.