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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 own a business that has had to cancel customer bookings due to COVID-19 lockdowns or other restrictions, you may be wondering whether you need to provide a refund or other compensation to your customers.

There is no blanket legal requirement on businesses to provide a full refund in the event of cancellation, including in the event of government-mandated lockdowns or other restrictions. This applies to all types of businesses including accommodation providers, event organisers, or any other business that takes bookings and deposits or payment up front.

However, it is important to be aware of the Australian Consumer Law and the requirements it imposes on your business.The Australian Consumer Law requires you to treat your customers fairly. The Australian Competition and Consumer Commission (‘the ACCC’) has provided some guidance on this in the context of COVID-19, stating that businesses must act in accordance with their terms and conditions at the time of booking.

As a business owner, you should therefore ensure that your terms and conditions are up-to-date and contain a clear cancellation policy. You should also ensure that your terms and conditions are clearly brought to your customers’ attention at the time of booking, such as on your website, on booking webpages and in booking confirmation emails.

Review your terms and conditions

You must adhere to your terms and conditions at the time of the customer’s booking, so it is important to review these and check they fit with your intentions. If your terms and conditions state that you will provide a full refund in the event of cancellation, then you must do so.

Consider whether your current terms and conditions include any of the following provisions:

  • Specific COVID-19 cancellation terms – these would provide the best protection to you as a business and help to reduce any misunderstandings between you and your customers. Specific COVID-19 cancellation terms should set out the customer’s entitlement in the event of a lockdown or other government restrictions, such as entitlement (or lackthereof) to a full refund, partial refund, credit note or voucher.
  • General cancellation terms – these might set out the customer’s entitlement (or lack thereof) to a full refund, partial refund, credit note or voucher in the event of any cancellation. Also consider whether the customer’s entitlements in the event that they cancel the booking voluntarily differ from their entitlements in the event of a cancellation by the business itself.
  • Force majeure – a force majeure clause may specify what should happen in the event that certain unforeseeable circumstances occur. If you have a force majeure clause in your terms and conditions, it would need to expressly cover events such as pandemics or government intervention to have effect in the context of COVID-19 related cancellations.

If you are unsure what to offer customers in the event of cancellation, Business Victoria has provided guidance on cancellation policies, credit notes and fees that you may charge in the event of cancellation.

Importantly, you must make sure that your terms and conditions are fair, otherwise they may be unenforceable. For more information about unfair contract terms, see our article Changes to Unfair Contract Terms.

Seek professional advice

If your terms and conditions are unclear or do not include specific COVID-19 cancellation terms, we recommend that you update them to ensure that your business is best protected and to prevent disputes with customers.  You may also consider ensuring that your terms and conditions cover other relevant aspects of your business which are outlined in our article here. A lawyer can assist in reviewing your terms and conditions and drafting new terms and conditions to ensure that your businesses interests are best protected should any problems arise.

How Sharrock Pitman Legal can help?

Our team of Accredited Specialists in Commercial Law are experienced in drafting terms and conditions for a variety of businesses across a wide range of industry sectors. Please feel free to contact us on 1300 205 506 to discuss your business’s needs.

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 schemeapproved under Professional Standards Legislation.

Written by a member of our Legal Team

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For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Commercial Law

If you own a business that has had to cancel customer bookings due to COVID-19 lockdowns or other restrictions, you may be wondering whether you need to provide a refund or other compensation to your customers.

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.