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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

The information contained in this article is current as at 4 May 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.

The social distancing restrictions that have been introduced in response to the coronavirus pandemic have raised issues regarding the signing of legal documents that require a witness, including affidavits and statutory declarations.

When the Oaths and Affirmations Act 2018 (“the O&A Act”) first came into effect on 1 March 2019, it contained provisions relating to oaths, affirmations, affidavits and statutory declarations. Significantly, there were some key changes introduced relating to affidavits and statutory declaration as follows:

Affidavits

  • Whilst the previous requirements for affidavit remain, there was an added requirement for all pages of an affidavit to be signed and any exhibit certificate to be signed by the deponent and affidavit taker
  • If the affidavit taker (i.e. the witness) was aware the deponent was illiterate, blind or had a cognitive impairment, the affidavit taker must certify in or below the jurat (or execution section) that they read the affidavit to the deponent

Statutory Declarations

  • The list of people who could take statutory declarations increased to include full time employed teachers at schools or tertiary institutions, nurses and some Australian Post staff
  • A statutory declaration witness could make reasonable modifications to the process of making a statutory declaration if the person making the statutory declaration had a disability that prevented them from doing so in accordance with the O&A Act
  • If the statutory declaration witness was aware the person making the statutory declaration was illiterate, blind or had a cognitive impairment, the statutory declaration witness must certify on the statutory declaration that they read the statutory declaration to the person making the statutory declaration

Impact of COVID-19

The current and on-going COVID-19 pandemic has seen the implementation of social distancing measures, with many people now working and self-isolating at home. Whilst these strategic measures are in place to prevent transmission of the disease in Victoria, it has created certain implications and uncertainty in relation to the signing and witnessing of legal documents.

On Friday, 24 April 2020, the Victorian Government passed the COVID-19 Omnibus (Emergency Measures) Act 2020 (“the Omnibus Act”), which introduced temporary changes to State law in response to relevant issues that arose due to the vastly changing COVID-19 environment and to ensure Victoria’s planning system could continue to operate during the pandemic.

The Omnibus Act, inter alia, made legislative amendments to the O&A Act which respond to various in person requirements and allow for electronic substitutions in regards to witnessing of affidavits, jurats and other documents.

Some of the temporary changes are as follows:

  • Part 3.13 of the Omnibus Act inserts a new part 5A into the O&A Act;
  • Section 49B allows a deponent or affidavit taker to sign or initial an affidavit, jurat or other document by electronic means;
  • Section 49C allows a deponent or affidavit taker to do a thing in relation to an affidavit, jurat or other document, normally required to be done in each other’s presence by means of audio link or audio visual link;
  • Section 49D responds to requirements relating to original documents and allows the affidavit taker to sign or initial a scanned hard copy or an electronic copy of the affidavit, jurat or other document;
  • Section 49E sets out requirements if a thing is done electronically or by means of audio link or audio visual link; and
  • Section 49F provides that the Court may admit an affidavit in evidence where particular requirements have not been fulfilled if it is in the interests of justice to do so, compliance with the requirements was not reasonably practicable and the affidavit states the reasons why compliance with those requirements was not reasonably practicable.

How can Sharrock Pitman Legal help?

Businesses and individuals should stay informed and up to date with any further guidance released by the Victorian government. If you are concerned about your obligations during COVID-19, please contact us on 1300 205 506 for a consultation or alternatively visit our COVID-19 updates and resources page for more information.

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

,

.

Lynda Lim

For further information contact

Lynda Lim

Lynda is a Senior Associate of Sharrock Pitman Legal. She is part of our Litgation team. For further information, contact Lynda Lim on her direct line (03) 8561 3330.

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 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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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.