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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

Disputes often arise between builders and owners and, when they do, they are often difficult, expensive and time-consuming to resolve – especially if litigation is required. Domestic Dispute Resolution Victoria (‘DBDRV’) is a free service established to assist owners and builders with the resolution of their dispute prior to the instigation of VCAT proceedings.

Where negotiations between parties have failed to reach a resolution, the DBDRV provides a venue for parties to air grievances and attempt to settle the matter with the assistance of an independent third party.

How does the DBDRV work?

Before going to the DBDRV, parties are required to have taken ‘reasonable steps’ to resolve their dispute. This may involve, for example, written requests to the other party to fix the defects or pay the amount owed. In addition, the dispute must relate to a domestic building contract and involve:

  • an owner
  • builder
  • building practitioner
  • architect, or
  • a sub-contractor.

Lastly, the dispute must be in relation to a home and not, for example, a motel or rooming house.

When a dispute arises, a party may make an application to the DBDRV for a conciliation conference. A conciliation conference involves both parties meeting in the presence of a conciliator who will attempt to facilitate an agreement between the parties that brings an end to the dispute.

The conciliator will require both parties to provide them with any relevant documentation, and will guide the parties through:

  • the issues in dispute
  • the outcomes sought, and
  • any proposed resolutions.

This provides both parties with an opportunity to air their issues in a safe environment, and the increased formality may encourage resolution through the impending possibility of potential VCAT proceedings.

Should I apply to the DBDRV?

Assuming you satisfy all of the above criteria, it may be worthwhile making an application to the DBDRV. Be aware that, at times, it can take a while for a matter to reach conciliation, as the service can have a long waiting list. Whether or not it is worth taking further informal steps to resolve the matter or making the application despite the substantial wait time, will depend on the circumstances of your case.

In instances where the other party has simply refused to engage with any attempts to negotiate a resolution, spending further time attempting to negotiate is most likely a futile process. On the other hand, where only minimal steps have been taken to resolve the matter thus far, a formal letter of demand may be an appropriate step prior to making an application to the DBDRV.

Even if relations between you and the other party have deteriorated and it doesn’t appear likely that matters will be resolved outside of legal proceedings, parties are generally required to attend the DBDRV before they can commence proceedings at VCAT.

This rule is, however, subject to some exceptions. Further information on requirements to attend the DBDRV prior to commencing VCAT proceedings can be found here.  

Legal representation and the DBDRV

Given the intricacies involved in building dispute matters, the appropriate course of action often depends on the circumstances, and we strongly advise that you seek legal advice to determine whether DBDRV is right for you.

If either party wishes to have a legal representative present at the DBDRV conciliation, they must seek approval from the DBDRV in advance. Generally, the DBDRV does not approve legal representation.

Despite this, legal advice can assist you in determining whether or not you should make an application to the DBDRV, how strong your legal position is, and what options you have available both during and after DBDRV conciliation.

Going into a conciliation armed with this information will ensure that you are in the best possible position to make the correct decision for your circumstances – whether that be accepting an offer from the other side, or deciding to proceed to VCAT. In addition, if approval for legal representation is given, you can proceed with the knowledge that your matter is being handled by people armed with the background of your case and the knowledge and experience to best advance your interests.

How can Sharrock Pitman Legal assist?

At Sharrock Pitman Legal, as Accredited Specialists in Commercial Litigation, we can provide expert advice and guide you through any dispute which may require resolution at the DBDRV, or any subsequent VCAT proceedings. Please call Simon Matters on (03) 8561 3324 or fill in the 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

,

.

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Specialist in Commercial Litigation (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 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.