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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

When terminating a contract early, the circumstances at that time and the content of the contract will be critical to understanding how this might be done as Commercial Law specialist Mitchell Zadow explains.

Introduction

In the current economic environment, businesses and individuals are under increasing financial pressure. Perhaps you have entered into a contract that you no longer want to be bound to. That will be possible, sometimes – but often it will not.

Unless the contract is terminated early, it will usually come to an end only in the following circumstances:

  • When the contract includes a fixed duration or expiry date (but be careful that it does not automatically renew); or
  • When the parties have completed their obligations to each other.

To terminate a contract early, the circumstances at that time and the content of the contract will be critical to understanding how this might be done. When claiming that a contract is terminated early, it is essential that you ensure you have a solid legal basis for doing so, as terminating a contract invalidly could be deemed a repudiation of the contract (discussed further below), which might give the other party the right to make a wrongful termination claim for damages from you.

Terminating a contract

The most common ways a contract can be terminated early include:

1.   Express terms of the contract that allow for the contract to be terminated early.

Most contracts include clauses that allow for early termination. However, termination clauses can differ significantly. Some contracts allow either party to terminate the contract, while other contracts allow only one party to terminate. Further, some clauses allow a party to end the contract “for convenience” or “without cause”, meaning that they do not need to justify their decision. However, some contracts only allow for early termination if certain events occur, such as a breach of the contract by the other party.  

2.   Subsequent agreement

The parties to the contract can agree to end the contract early via a subsequent agreement where they agree to release the other from the original contract. This can be possible even if the contract does not include a termination clause. However, all parties to the contract must agree.

3.   Repudiation

If one of the parties to the contract shows an unwillingness or inability to complete their contractual obligations, the other party may be able to argue that the contract has been repudiated and, accordingly, that the contract is brought to an end. However, care should be taken if you are trying to end a contract on this basis, as you could be liable to a wrongful termination claim if you do not have a proper legal basis.

4.   Abandonment

The contract could be considered abandoned if it is clear from the conduct of all the parties that they do not intend to fulfil the contract. Again, care should be taken when trying to end a contract on this basis.

How Can Sharrock Pitman Legal Help?

When considering your position in relation to a contract, consider obtaining legal advice prior to taking any action. There might be several options available to you, which could help ensure you terminate the contract safely and with less risk of a claim by the other party.

Our Accredited Specialist Commercial Law team has been helping business owners and managers for over fifty years. Our team has experience in assisting businesses across a wide range of industries including retailhospitalitymanufacturinghealth and medical practices, construction and real estate.

Our lawyers can also advise business owners on intellectual property and employment law – important factors to consider for any business owner or operator.

Get in touch with us on 1300 205 506 or sp@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

,

.

Mitchell Zadow

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.

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When terminating a contract early, the circumstances at that time and the content of the contract will be critical to understanding how this might be done as Commercial Law specialist Mitchell Zadow explains.

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.