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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

This article is up to date as at 6 April 2020.

The information contained in this article is current as at 6 April 2020 and may no longer be up-to-date. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.

Victoria’s Courts and Tribunals have adopted varying approaches to respond to coronavirus (COVID-19). Each Court has provided detailed statements regarding their approach which can be found on their respective websites. This article seeks to provide a brief overview of the measures that have been taken at this stage, and will focus solely on the response of the Courts and VCAT in relation to civil matters. For information regarding criminal matters or intervention orders, follow the links provided to the relevant court websites.

VCAT

VCAT has closed its venues to the public and adjourned all non-critical cases listed up to and including 15 May 2020. From the information they have provided, it appears that critical cases include Residential Tenancy matters and Guardianship matters. Other matters may still be considered ‘critical’ and heard at this time, but it is not yet clear which matters may fall within this definition.

For critical matters, VCAT is seeking to make arrangements for these to be heard via phone or other electronic communication, where possible.

If you have a matter listed before this date and have not heard from VCAT regarding any postponement, please keep in mind that there may be delays in contacting parties, particularly given the large volume of matters that require adjournment. If you wish to enquire specifically about your matter, you may wish to call VCAT on 1300 018 228.

Applications can still be made to VCAT during this time, however, please note that, unless your application is classified as a critical case, it is unlikely to be scheduled for hearing for quite some months and, in any event, no earlier than 15 May 2020.

For more information regarding VCAT’s response to COVID-19, visit their website.

Magistrates’ Court

The Magistrates’ Court response to COVID-19 differs significantly depending on the jurisdiction of the matter.

Civil

In the civil jurisdiction, no one is to attend court unless directed. Accordingly, all filing is to be done by post, fax, or email, the details of which can be found on the Magistrates’ Court website. An email address and telephone number for service must also be provided. Further, personal service may now be effected by registered post, and ordinary service by email.

With regards to applications, parties are encouraged to resolve any applications by consent, where possible. All non-urgent applications made to the court that are not resolved by consent will now be heard on the papers, with parties to file written submissions with the Court by 2:00 pm on the day prior to the hearing. Decisions will then be delivered in writing or via telephone or video conference.

Directions hearings and contested hearings

Directions hearings and contested hearings will be adjourned and directions will be given on the papers if appropriate. Prehearing conferences and all post-judgment applications will be conducted by telephone conference or as the court directs until further notice. The court has set out strict timelines for documents to be provided to the other party prior to the pre-hearing conference, including a requirement that any Offers of Compromise and costs disclosure statements be provided 7 days prior to the conference. Every matter that does not settle at a prehearing conference, as well as every contested hearing that has been adjourned, will then be listed for an early neutral evaluation, which will again be conducted by telephone conference or audio visual link.

Please note that different procedures apply for WorkCover proceedings, intervention order matters, and criminal matters. For these jurisdictions, as well as further information on the Magistrates’ Court’s approach to civil matters, please view the Magistrates’ Court website.

County Court of Victoria

The County has adopted different practices for the common law and commercial division. It should be noted that the current approach will be reviewed following Easter.

Common Law Division

For the matters that are already listed, parties will be contacted by the associate or a member of the registry on the afternoon before a matter is listed for hearing in order to arrange a time for a video link or telephone conference. An Associate will then send an invitation to a video conference using Zoom via email. At the arranged time, a judge or judicial registrar will contact the parties to discuss the matter and, if the case can be heard within 2 days, then it will be allocated a judge.

For matters that are expected to take longer than two days, the Court will consider whether the listing can be maintained on a case by case basis. Where the listing cannot be maintained, the parties may consider whether they wish to engage in judicial mediation, which the Court will seek to arrange to occur that day. If the matter cannot proceed and does not settle, the case will be listed for an Administrative Mention in the first week of May 2020.

All directions hearings, save for those in the Appeals and Post Sentence Applications List, Confiscation List and Adoptions List, will be conducted via video conference. In addition, parties are encouraged to forward consent orders to the Court, where possible.

All Court-ordered mediations may be conducted via video conference.

Commercial Division

Trials of 5 days or less will proceed at this stage unless vacated by consent or Court Order. The Court will list these cases for a directions hearing by video conference or telephone conference before a Judicial Registrar to determine whether the trial can proceed and any measures that may need to be taken.

Trials of longer than 5 days will be vacated and re-timetabled. Regardless of length, if the trial cannot proceed, the parties may be offered a Judicial Resolution Conference or non-binding Neutral Evaluation, if appropriate. Otherwise, the trial will be re-timetabled.

The Court has noted that trials that cannot proceed may face a delay of over 12 months.

Judicial Resolution Conferences and non-binding Neutral Evaluations will be conducted via video conference. If this is not possible, they will be conducted by telephone conference or adjourned, as appropriate.

Most interlocutory determinations made by Judicial Registrars will be made on the papers, including directions hearings, summonses, and trial assessments. Summonses listed for hearing before the Duty Judge will proceed unless vacated, but the parties are encouraged to cooperate with chambers for determination of applications on the papers or remotely by video or telephone conference.

As with the Magistrates’ Court, further information, including information on other divisions of the County Court, can be found on their website.

Supreme Court of Victoria

As with the County Court, the specific approach taken by the Supreme Court varies depending on the different divisions and lists of the Court. It should be noted that the Supreme Court’s preferred platform for video conference is Skype.

Common Law Division

In the Common Law Division, trials will by default be heard using telephone or video conference, and trials scheduled to be heard before a jury will now proceed before a judge. In keeping with these requirements, parties will be asked to lodge electronic court books and judgments will be delivered without parties’ attendance at Court.

Judges may require parties to attend in-person appearances for essential matters, or adjourn the proceeding in the case of trials which would have been heard before a jury.

Practice Court matters will be dealt with on the papers, and parties will be required to file short written submissions to assist. If either party considers an oral hearing is necessary, additional written submissions as to this matter will be required.

For the civil circuit, institutional liability, major torts, personal injury, and professional liability lists:

  • Directions hearings will generally be conducted on the papers. Where the parties cannot provide minutes of proposed consent orders, they are to provide the court with details of any dispute regarding the directions and the reasons for their positions.
  • Interlocutory applications which cannot be resolved by consent will be determined on the papers on the basis of submissions and affidavit material.
  • If necessary, directions hearings and interlocutory applications will be conducted by teleconference or video conference.

You can find more information on the other lists in the common law divisions, including the dust diseases list, confiscation and proceeds of crime list, judicial review and appeals, and trusts, equity and probate lists, here. Generally, however, parties are expected to provide proposed consent orders or submissions regarding any disputed issues in much the same manner as with the lists detailed above.

Commercial Court

The Commercial Court will deal with directions hearings and interlocutory applications in much the same way as the Common Law Division lists detailed above. If the matter cannot be dealt with on the papers, the Court will arrange for hearings via telephone or video conferencing.

Trials will be conducted electronically and judgments delivered without the parties’ attendance.

In addition, mediations in each of these divisions will be conducted remotely by telephone or video conference.

It should also be noted that attendance at the registry is strongly discouraged and, where necessary, requests for an appointment (such as for the urgent inspection of subpoena documents) should be made to the relevant email address, found here.

Parties to matters listed to 14 April 2020 in both the Common Law Division and Commercial Court will be contacted by Court staff.

Further updates on the Supreme Court’s approach to COVID-19 can be found here.

Federal Court

The Registry of the Federal Courts now only provides services remotely, by telephone or online, except in urgent circumstances, as assessed following a telephone assessment. Similarly, subpoena inspections are to be by appointment only and if truly necessary, such as when a matter is urgent or scheduled for hearing within 4 weeks.

All documents are to be filed electronically and, in order to facilitate this, the Court will allow documents to be signed electronically if necessary, and will accept the filing of unsworn affidavits. Any unsworn affidavits can then be sworn when circumstances allow.

Where possible, matters will be conducted on the papers, by telephone or by video conference. The Federal Court generally utilises Microsoft Teams for video conferences. The appropriate course will be determined through discussions between the Court and the parties. Matters that require in person attendance will be vacated and adjourned except in exceptional circumstances. The Court will attempt to contact parties two weeks prior to any listings.

All hearings before the Court are currently proceeding using Microsoft Teams and telephone conferencing.

More information on the Federal Court’s response to COVID-19 can be found here.

How can Sharrock Pitman Legal assist?

If you have any further queries in relation to the operation of the Courts during this time, feel free to get in touch with one of our lawyers on 1300 205 506 or alternatively fill in the contact form below.

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]

This article is up to date as at 6 April 2020.

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

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