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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

As the COVID-19 pandemic continues to spread across the globe and cause unprecedented economic stress and challenges to business pipelines and workplace operations, it is inevitable that such instability will result in a spike in the number of commercial disputes. These disputes may stem from businesses becoming unable or unwilling to meet their contractual obligations or adjust to the disruption which may have come about though lockdown periods, business closures, reductions in staffing, cancellations of events and travel restrictions.

Already, we have witnessed the immediate impact of COVID-19 on our courts and tribunals with a number of fundamental procedural changes to the way in which disputes are being handled. The closure of open court hearings, the postponement of many cases listed for final hearing at the instigation of the courts, timetable delays and on-going operational limitations to civil litigation are all examples of the significant changes that have occurred to date. We are therefore seeing an increase in remote or virtual hearings being moved entirely to an online platform.

As a result, parties must attempt to find effective and innovative ways to negotiate commercial outcomes and explore the possibilities of a commercial settlement if:

  • they wish to preserve existing business relationships;
  • avoid further delays;
  • avoid going to the Courts altogether; and/or
  • they are prepared to compromise to some extent.

Legal Position

If parties wish to consider entering into settlement negotiations, it is important that all documents relating to the dispute are collated. This “information gathering” task includes collecting copies of the contract, invoices, financial statements and correspondence between the parties as well as third parties. Next, it is important to examine the clauses contained in the contract to determine if any unforeseen situations are contemplated. Importantly, a check of any relevant laws, regulations or codes of conduct with respect to the area of business is prudent to determine if any COVID-19 legal updates may impact the ability or entitlement to pursue the dispute.

Communication

Communication is key when attempting to resolve a commercial dispute efficiently. Often, a dispute may arise from a misunderstanding. If a business has been affected by COVID-19, it is helpful to relay this to other party, whether it be through an initial phone call or written correspondence. If the matter remains unresolved, documenting the dispute through written communication is important as the parties have it on record as to what position they take in relation to the dispute.

Mediation

Mediation offers an informal means for parties to engage in negotiations with the assistance of an independent mediator.  If settlement negotiations fall through and in light of the current COVID-19 climate, remote mediations through phone or video-conferencing are fast becoming the rule, rather than the exception, in providing parties a chance to settle their disputes online.

Despite the existence of COVID-19, parties should still consider the merits of attempting mediation and to be wary that going to court is expensive, time-consuming and stressful, all of which can have a significant impact on a business’ operations.

If you are looking to mediate a dispute, our mediation service DisputeOver offers in-person and online mediations Australia-wide. See here for more information.

How can Sharrock Pitman Legal help?

If you are involved in a commercial dispute that has arisen due to COVID-19 or if you are not clear on your legal position, as Accredited Commercial Litigation Specialists, we are well equipped to assist in strategising and providing practical, cost-effective options to help resolve your matter. Please call us 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

,

.

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.