Recommendations

Witnessing wills and undue influence

Prevention of undue influence through other changes to the will-making process

1 The Law Institute of Victoria should prepare best practice guidelines for legal practitioners on the detection and prevention of undue influence when preparing a will. These guidelines should cover such matters as:

(a) the importance of taking detailed instructions from the will-maker alone

(b) common risk factors associated with undue influence

(c) the need to keep detailed file notes and make inquiries regarding previous wills.

Doctrine of undue influence

2 Four years after the legislation comes into effect, the Attorney-General should cause a report to be prepared on:

(a) the operation of new legislation in British Columbia that imports the equitable doctrine of undue influence into the probate context, and

(b) whether a similar provision should be adopted in Victoria.

Statutory wills

Involvement of the incapacitated person in the decision

3 The Wills Act 1997 (Vic) should expressly provide that the Court may order separate representation for the person on whose behalf an application for a statutory will is made.

Accessibility of the statutory wills process

4 An application for a statutory will should be made in one stage rather than two. The requirement at section 21(2) of the Wills Act 1997 (Vic) to seek leave to make an application for a statutory will should be repealed and consequential amendments made to sections 26–29.

Ademption

Acts by administrators appointed by the Victorian Civil and Administrative Tribunal

5 Section 53 of the Guardianship and Administration Act 1986 (Vic), which modifies the common law of ademption where an administrator sells or otherwise disposes of a represented person’s property, should be amended to allow a beneficiary under a will to apply to the Supreme Court for an order where:

(a) the exception would result in a beneficiary under the will gaining an unjust and disproportionate advantage or suffering an unjust and disproportionate disadvantage
of a kind not contemplated in the will

(b) notwithstanding the exception to ademption, the outcome would result in a beneficiary under the will gaining an unjust and disproportionate advantage or suffering an unjust and disproportionate disadvantage of a kind not contemplated in the will.

The Court would make such orders and direct such conveyances, deeds and things to be executed and done as it thinks fit.

6 Section 53 of the Guardianship and Administration Act 1986 (Vic) should be amended to provide that a beneficiary under a will to whom the section applies because an administrator has sold or otherwise disposed of the will-maker’s property is entitled to any traceable income generated by any sale proceeds.

7 Section 53 of the Guardianship and Administration Act 1986 (Vic) should be amended to:

(a) no longer require an administrator to keep a separate account and record of the money or other property received upon the sale or other disposition of the represented person’s property

(b) expressly state that an administrator is not required to keep any proceeds of the sale or other disposition of property separate from the represented person’s other assets.

8 Section 53 of the Guardianship and Administration Act 1986 (Vic) should be amended to clarify that it applies whether or not the represented person had testamentary capacity at the time of the sale or other disposition of relevant property.

Acts by persons acting under an enduring power of attorney

9 The Instruments Act 1958 (Vic) should be amended to provide an exception to ademption when property is sold or otherwise disposed of by a person acting under an enduring power of attorney (financial). The exception should align with the exception that will apply to administrators under section 53 of the Guardianship and Administration Act 1986 (Vic) as amended in accordance with recommendations 5–8, including:

(a) a right of beneficiaries under a will to apply to the court if the result is unjust

(b) no requirement that the attorney keep a separate account and record of the proceeds of the sale or other disposition

(c) no requirement that the attorney keep the proceeds of sale or other disposition separate from other assets owned by the donor of the power

(d) no requirement that the donor of the power be without will-making capacity at the time of the sale or other disposition. 

Access to a person’s will to prevent ademption

10 Guardianship legislation should provide for a person acting under an enduring power of attorney (financial) to apply to the Victorian Civil and Administrative Tribunal for a full or redacted copy of a will made by the donor of the power. The Tribunal would be able to grant access only where the donor does not have testamentary capacity.

Intestacy

Setting a limit on next of kin

11 The entitlements of all next of kin on intestacy should be clearly set out in the Administration and Probate Act 1958 (Vic).

12 Next of kin who are entitled to inherit on intestacy should be limited to children of the deceased person’s parents’ siblings (the deceased person’s first cousins).

13 Persons entitled to inherit on intestacy in more than one capacity should be entitled to take in each capacity.

Survivorship

14 Next of kin should be required to survive the deceased person for 30 days in order to inherit on intestacy, unless the survivorship requirement would result in bona vacantia.

15 Children who are conceived but not yet born at the date of the deceased person’s death should be required to survive for at least 30 days after birth in order to inherit on intestacy, unless the survivorship requirement would result in bona vacantia.

The partner’s share

16 The definition of partner in the Administration and Probate Act 1958 (Vic) should be amended to include registered caring partners, as defined in the Administration and Probate Act 1958 (Vic) by reference to the Relationships Act 2008 (Vic).

17 Registered caring partners should be entitled to inherit on intestacy in the same circumstances as spouses, registered domestic partners and unregistered domestic partners.

18 Where the deceased person is survived by a partner and children or other issue who are entitled to a share on intestacy, the deceased person’s partner’s statutory legacy should be increased to $350,000 and adjusted to reflect changes in the All Groups Consumer Price Index number according to the following formula:

A = $350,000 x B/C, where

A represents the Consumer Price Index adjusted legacy

B represents the All Groups Consumer Price Index number for the last quarter for which such a number was published before the date of the deceased person’s death

C represents the All Groups Consumer Price Index number for the December 2005 quarter.

 

19 The Supreme Court of Victoria should publish the quarterly Consumer Price Index adjusted statutory legacies on its website.

20 The deceased person’s partner should be entitled to interest on the statutory legacy to which they are entitled on intestacy, or any part thereof, that is not paid within one year after the deceased person’s death.

21 Interest on a statutory legacy to which a deceased person’s partner is entitled on intestacy should be calculated between the first anniversary of the deceased person’s death and the date of payment of the legacy in full, in accordance with a rate that is two per cent above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue.

22 Where the deceased person is survived by a partner and children or other issue who are entitled to a share on intestacy, the partner’s share of the remainder of the intestate estate should be increased to one half.

The partner’s right to elect to acquire an interest in certain property

23 The deceased person’s partner should have a right to elect to acquire an interest in any property in the intestate estate on intestacy.

24 If the deceased person’s partner elects to acquire an interest in property from the intestate estate, they should satisfy the price of this interest:

(a) first from money to which the partner is entitled from the intestate estate and, if that is insufficient,

(b) from money paid by the partner to the estate on or before the date of the transfer.

25 If the partner of the deceased person wishes to elect to acquire property from the intestate estate, they should be required to apply to the Supreme Court for authorisation of the election if:

(a) the property forms part of a larger aggregate, and

(b) the acquisition could substantially diminish the value of the remainder of the property or make the administration of the estate substantially more difficult.

26 When authorising an election by the deceased person’s partner to acquire property from the intestate estate, the Supreme Court should:

(a) be able to impose such conditions as it considers just and equitable, including a condition that the partner pay compensation to the estate in addition to consideration to be given for the property

(b) be required to refuse authorisation of an election if it considers that the diminution of the value of the remainder of the estate, or difficulties in administration, cannot be adequately addressed by granting an authorisation subject to conditions.

27 A personal representative should not be permitted to dispose of property from an intestate estate, except to a partner who has elected to acquire it, unless any of the following applies:

(a) the personal representative is the partner entitled to make the election

(b) time for exercising the election has elapsed and no election has been made

(c) the election requires the Court’s authorisation but the necessary authorisation
has been refused or the application for authorisation has been withdrawn

(d) the partner has notified the personal representative, in writing, that he or she
does not propose to exercise the right to acquire property from the estate

(e) sale of the property is required to meet funeral and administration expenses,
debts and other liabilities of the estate

(f) the property is perishable or likely to decrease rapidly in value.

28 Details of the expanded right of the deceased person’s partner to elect to acquire property from the intestate estate, including in relation to notice requirements, time limits and valuation of property, should be based on the recommendations of the National Committee for Uniform Succession Laws, as reflected in sections 114–121 of the Succession Act 2006 (NSW).

Multiple partners

29 Where the deceased person is survived by multiple partners, but no children or other issue who are entitled to a share on intestacy, the Administration and Probate Act 1958 (Vic) should provide for the intestate estate to be distributed:

(a) in accordance with a distribution agreement, or

(b) in accordance with a distribution order, or

(c) equally between the partners.

30 Where the deceased person is survived by multiple partners and children or other issue who are entitled to a share on intestacy, the deceased person’s personal chattels, adjusted statutory legacy, interest on the adjusted statutory legacy (if any) and one half of the remainder of the intestate estate should be shared between the partners:

(a) in accordance with a distribution agreement, or

(b) in accordance with a distribution order, or

(c) equally between the partners.

31 Where the deceased person is survived by multiple partners, there should be no right to elect to acquire an interest in particular estate property.

Entitlements of the deceased person’s children or issue

32 Children or other issue of a deceased person should not be entitled to a share on intestacy if:

(a) they are children or issue of a surviving partner of the deceased person who is entitled to a share on intestacy, and

(b) all surviving children or issue of the deceased person are also children or issue of that surviving partner or another partner of the deceased person who is entitled to a share on intestacy.

33 If any of the children of a deceased person are not children of a surviving partner of the deceased person who is entitled to a share on intestacy, then all children of the deceased person should be entitled to an equal share on intestacy.

Per stirpes or per capita distribution 

34 Where next of kin take by representation, per capita distribution on intestacy should be abolished and per stirpes distribution should be applied in all cases.

Taking benefits into account

35 The Administration and Probate Act 1958 (Vic) should be amended to provide that the distribution of an intestate estate is not affected by dispositions made by the deceased person:

(a) during the deceased person’s lifetime, or

(b) in the case of a partial intestacy, by will.

Intestate estates of Indigenous people

36 The Attorney-General should have the Department of Justice prepare a report about the distribution of the intestate estates of Indigenous people in Victoria, including the need for any legislative reform. This report should build on the work of the National Committee for Uniform Succession Laws and the findings of the Commission, and be based on further community consultation.

Family provision

Court jurisdiction

37 The Administration and Probate Act 1958 (Vic) should be amended to:

(a) grant the County Court exclusive jurisdiction over family provision claims where the value of the net estate does not exceed $500,000

(b) specify that the County Court and Supreme Court have concurrent jurisdiction
in relation to all other family provision proceedings

(c) remove reference to the County Court’s jurisdictional limit.

Eligibility to make a family provision claim

38 Victoria should replace its ‘responsibility’ test for eligibility to make a family provision claim with a test based on the New South Wales test for eligibility, but extended to include stepchildren. To this end, section 91(1) of the Administration and Probate Act 1958 (Vic) should be repealed and replaced with provisions in the following terms:

The following are eligible persons who may apply to the court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the wife or husband of the deceased person at the time
of the deceased person’s death

(b) a person with whom the deceased person was living in a registrable domestic relationship or registered domestic relationship at the time of the deceased person’s death

(c) a child of the deceased person

(d) a former wife or husband of the deceased person

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or any other particular time, a member of the household of which the deceased person was a member

(f) a person with whom the deceased person was living in a registrable caring relationship or registered caring relationship

(g) a stepchild of the deceased person.

39 The Administration and Probate Act 1958 (Vic) should provide that the court may, on application under the relevant provisions, make a family provision order in relation to the estate of a deceased person, if it is satisfied that:

(a) the person in whose favour the order is to be made is an eligible person, and

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e), (f) or (g), in recommendation 38 above—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c) at the time when the court is considering the application, adequate provision
for the proper maintenance and support of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy provisions, or both.

40 The court should:

(a) be permitted to consider the criteria set out in sections 91(4)(e)–(p) of the Administration and Probate Act 1958 (Vic) when determining whether the applicant is an eligible person and, where relevant, whether there are factors which warrant the making of the application

(b) be required to consider the criteria set out in sections 91(4)(e)–(p) of the Administration and Probate Act 1958 (Vic) when determining:

(i) whether adequate provision was made for the applicant’s proper maintenance and support

(ii) the amount of further provision that should be made, if any.

Costs rules

41 Sections 97(6) and 97(7) of the Administration and Probate Act 1958 (Vic) should be repealed and replaced by provisions that:

(a) specify that the court may make any order as to the costs of a family provision application that is, in the court’s opinion, just

(b) set out a non-exhaustive list of the types of costs orders that the court may make, including:

(i) an order that each party bear their own costs

(ii) an order that the estate pay the costs of an applicant, whether successful or unsuccessful, on any basis and to any extent

(iii) an order that an applicant pay the costs of a personal representative, on any basis and to any extent.

42 The family provision costs provisions in the Administration and Probate Act 1958 (Vic) should specify that the court has the power to cap costs.

43 The family provision costs provisions in the Administration and Probate Act 1958 (Vic) should specify that they do not otherwise limit:

(a) the Supreme Court’s existing jurisdiction

(b) the County Court’s existing jurisdiction

(c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

Procedure

44 The County Court and Supreme Court should consider including in equivalent practice notes or rules of court:

(a) reference to position statements and direction as to the length, form and content of position statements for use in family provision proceedings

(b) provision concerning pro forma affidavits in family provision proceedings, similar to those referred to in Practice Note SC Eq 7 of the Supreme Court of New South Wales

(c) guidelines in relation to when a family provision matter will be referred to judicial mediation

(d) a requirement that parties to family provision proceedings bring to mediation an estimate of their costs to date, based on the relevant court scale

(e) reference to the courts’ powers to order affidavits as to costs at any stage of a family provision proceeding

(f) reference to the courts’ powers to cap costs and make other orders as to costs in family provision proceedings.

45 The County Court should consider including in its County Court Civil Procedure Rules 2008 (Vic) a rule permitting it to determine a family provision application summarily when:

(a) there are reasonable grounds on which to conclude that the net estate of the deceased person that will be available for distribution will be less than $500,000, and

(b) it is in the interests of justice to do so.

46 The County Court should consider whether its County Court Civil Procedure Rules 2008 (Vic) should provide that summary determination of a family provision application:

(a) is to proceed in accordance with such directions as are given by the Court

(b) may be on the basis of evidence that does not conform with the rules of evidence

(c) is to have as a primary object the minimisation of costs and an expeditious but
just resolution of the action.

47 The County Court should consider including in its County Court Civil Procedure Rules 2008 (Vic) a rule that permits the Court to order a party to pay any costs that might have been avoided if a family provision application had been determined summarily if:

(a) because of the party’s actions, the family provision application was not determined summarily and proceeded to trial, and

(b) at trial the Court finds that the family provision application should have been determined summarily.

The summary determination costs rule should specify that it does not limit any other power
of the Court in relation to costs.

Other areas for reform raised in the Commission’s consultation paper

48 The Administration and Probate Act 1958 (Vic) should permit any person to apply to the court for approval of a release of their rights to make a family provision application, as provided by sections 95 and 96 of the Succession Act 2006 (NSW).

49 Section 99A of the Administration and Probate Act 1958 (Vic) should be amended to clarify that:

(a) it relates only to protection of personal representatives, and

(b) it does not affect the time within which a family provision application must be made under section 99 of the Administration and Probate Act 1958 (Vic).

50 The second proviso to section 99 of the Administration and Probate Act 1958 (Vic), which refers to Part V of that Act, should be removed.

Executors’ costs and commission

Special rules for legal practitioner executors

51 The Law Institute of Victoria or other relevant body should revise the conduct and practice rules that apply to legal practitioners who prepare a will or other instrument under which they receive a benefit to expressly require the practitioner to obtain the client’s informed consent to the payment of the benefit.

52 A new provision should be inserted into the Administration and Probate Act 1958 (Vic) to the effect that a professional executor is unable to rely on a remuneration or commission clause
in a will unless the will-maker gave their informed written consent to the inclusion of the clause, before the will was executed.

53 A new provision should be inserted into the Administration and Probate Act 1958 (Vic) to the effect that an executor may receive commission from the assets of an estate provided that the executor obtains the fully informed consent of all interested beneficiaries.

54 Legal practitioner executors should be required to disclose to beneficiaries details about their charges to the estate for executorial and legal services, and associated information, along
the lines currently required by section 3.4.9 of the Legal Profession Act 2004 (Vic) in respect of costs disclosure to clients. In particular:

(a) Costs disclosure to beneficiaries should be required:

(i) as soon as practicable after the law practice or legal practitioner commences
in the position of executor

(ii) as soon as practicable after the law practice or legal practitioner executor becomes aware of any substantial change to anything included in a disclosure already made to the beneficiary

(iii) in plain language, which may be in a language other than English if the beneficiary is more familiar with that language

(iv) by spoken word to a beneficiary of legal capacity who is unable to read.

(b) Costs disclosure to beneficiaries should not be required:

(i) if disclosure in accordance with the obligations currently set out at sections 3.4.9–3.4.18 is made to a co-executor who is not a legal practitioner

(ii) to a beneficiary who is not legally competent

(iii) to a beneficiary whose entitlement under the will is unaffected by payment from the estate for legal and executorial services.

(c) A failure by a law practice to comply with the disclosure requirements should be capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any legal practitioner involved in the failure, as currently applies in respect of disclosure to clients.

55 Costs disclosure to beneficiaries about their rights to receive information, seek costs review and make a complaint should be possible by providing a written statement. As is currently permitted in respect of cost disclosure to clients, the written statement should be prepared in accordance with the regulations, and supplemented by fact sheets and documents prepared
by the Legal Services Commissioner in consultation with the profession.

56 A new provision should be inserted into the Administration and Probate Act 1958 (Vic) to the effect that, where a will contains a provision authorising a professional executor to charge commission, the professional executor may elect to charge fees for executorial work rather than relying on the provision in the will. The ability to make an election would be subject to conditions, including that the fees:

(a) do not exceed in total the amount to which the executor would have been entitled if the executor had not made the election

(b) are calculated at a rate applicable for work that does not require the executor to use their specialist professional skills

(c) are distinguished from any fees charged by the professional executor for professional services

(d) where the professional executor is a legal practitioner, are treated as legal costs for the purposes of the rights of the beneficiaries to apply for costs review by the Costs Court and make a civil complaint to the Legal Services Commissioner.

Court review of costs and commission

57 The Supreme Court should have the power to review and vary commission, charges and disbursements claimed by executors and administrators out of estates. A new provision of the Administration and Probate Act 1958 (Vic), based on section 86A of the Probate and Administration Act 1898 (NSW), should provide that:

(a) the court may review all or part of a commission or amount charged or proposed to be charged in respect of any estate

(b) if it finds it is excessive, the court may reduce it even if it was authorised by a provision in the will

(c) subject to any extension of time granted by the court, an application granted by this provision should be brought within three months after the time that the applicant beneficiary first knew, or ought to have known, of all commission, charges and disbursements charged or proposed to be charged out of the estate.

Other regulatory reform

58 The Legal Services Commissioner should be given jurisdiction to resolve a dispute between a legal practitioner and a beneficiary under a will about an amount charged to an estate for executorial services, where the disputed amount does not exceed $25,000. The procedures for resolving such a dispute would be essentially the same as those that currently apply to civil disputes under Part 4.2 of the Legal Profession Act 2004 (Vic) and would specify that:

(a) a complaint that involves a dispute about an amount charged for executorial services must be made within 60 days after the time that the applicant
beneficiary first knew, or ought to have known, of the amount charged or proposed to be charged

(b) the Legal Services Commissioner has discretion to provide more time as currently permitted by section 4.2.7(4) of the Legal Profession Act 2004 (Vic) for complaints that involve a dispute about legal costs

(c) a beneficiary who makes a complaint to the Legal Services Commissioner that involves a dispute about an amount charged for executorial services may not apply for review by the court.

59 The Legal Services Commissioner should be given jurisdiction to resolve a civil dispute between a legal practitioner and a beneficiary under a will or trust where the dispute relates to services provided by the legal practitioner to the estate in the capacity of executor or trustee. The procedures for resolving such a dispute would be the same as those which currently apply
to civil disputes under Part 4.2 of the Legal Profession Act 2004 (Vic).

60 Review of legal costs by the Costs Court, as currently made available to clients and third party payers by section 3.4.38 of the Legal Profession Act 2004 (Vic), should once again be made available to a person interested in any property out of which a legal practitioner executor, administrator or trustee may recover legal costs.

61 The Law Institute of Victoria or other relevant body should make:

(a) uniform rules under the new uniform law that clarify the duties of legal practitioners in providing executorial services and charging for those services

(b) in support of these rules, guidelines for legal practitioner executors on meeting their fiduciary responsibilities.

62 The Victoria Law Foundation should publish a guide, or series of guides, on making wills and the role of the executor. The information should encompass the following topics and be made available in community languages:

(a) questions and issues to consider when making a will, focusing on helping will-makers avoid problems commonly identified in wills made without legal advice and providing guidance about selecting an executor

(b) practical information for non-professional executors about what they need to do in that position, focusing on resources that can help them in meeting their responsibilities and identifying where they may obtain professional assistance

(c) practical information for bereaved family and friends about what happens to the assets of a person after they die, focusing on what the executor needs to do before the estate can be distributed and the basis on which the estate might be charged for their services.

Payment of debts

Solvent estates

63 The Administration and Probate Act 1958 (Vic) should be amended to:

(a) repeal Part II of the Second Schedule (order of application of assets where the estate is solvent)

(b) provide in section 39(2) of the Act the following order of application, as recommended by the National Committee for Uniform Succession Laws:

1. Property specifically appropriated or given by will (either by a specific or general description) for the payment of debts; and property charged by will with, or given by will (either by a specific or general description) subject to a charge for, the payment of debts.

2. Property comprising the residuary estate of the deceased person and property in relation to which a disposition in the deceased person’s will operates as the exercise of a general power of appointment.

3. Property specifically given by will, including property specifically appointed under a general power of appointment, and any legacy charged on property given or appointed.

(c) provide that the provisions in (b) should be subject to the manifestation of any contrary intention contained in the will.

64 A provision should be inserted into the Administration and Probate Act 1958 (Vic) that stipulates that the payment of pecuniary legacies is to be made from the residuary estate.

65 Section 40(1) of the Administration and Probate Act 1958 (Vic) should be amended to provide that an expression of contrary intention may only be shown by will.

Insolvent estates

66 The Administration and Probate Act 1958 (Vic) should be amended to:

(a) repeal Part I of the Second Schedule (rules as to payment of debts where the estate is not solvent)

(b) provide in section 39(1) that the provisions of the Administration and Probate Act 1958 (Vic) will only apply where an insolvent estate is not being administered under the provisions of the Bankruptcy Act 1966 (Cth)

(c) provide in section 39(1) that the relevant rules of bankruptcy are those in force at the time of death

(d) provide in section 39(1) a list of the provisions of the Bankruptcy Act 1966 (Cth) that will apply when estates are being administered under the Administration and Probate Act 1958 (Vic).

Small estates

Assistance in seeking a grant of representation

67 Section 71(1) of the Administration and Probate Act 1958 (Vic) should be replaced with a provision that:

(a) permits a person entitled to probate of the will or letters of administration in respect of an estate not exceeding $100,000 in value to apply to the registrar of probates or, where appropriate, a registrar of the Magistrates’ Court, for aid in obtaining a grant of representation

(b) provides for the maximum value of the estate in respect of which the aid may be provided to be adjusted quarterly to reflect changes in the All Groups Consumer Price Index.

68 The Supreme Court of Victoria should publish on its website the quarterly Consumer Price Index adjusted maximum values of estates in respect of which the Probate Office may provide assistance in applying for a grant of representation.

69 The Supreme Court of Victoria, in consultation with Victoria Legal Aid, the Law Institute of Victoria and the Federation of Community Legal Centres, should develop and make available on its website in community languages a package of information for those wishing to seek a grant of representation without professional assistance.

Informal administration

70 Section 33(1) of the Administration and Probate Act 1958 (Vic) should be redrafted in the simpler form reflected in the National Committee’s model provision dealing with persons acting informally.

71 Drawing on model legislation proposed by the National Committee for Uniform Succession Laws, section 32 of the Administration and Probate Act 1958 (Vic) should be amended to:

(a) provide a discharge of liability in respect of payments of $25,000 or less

(b) provide that the $25,000 limit will be adjusted quarterly to reflect changes in the All Groups Consumer Price Index

(c) provide that payments made in accordance with the section will serve as a complete discharge of liability

(d) remove the requirement that the party releasing the assets be satisfied that the value of the estate does not exceed a particular limit.

72 The Supreme Court of Victoria should publish on its website the quarterly Consumer Price Index adjusted limit for the purposes of section 32 of the Administration and Probate Act 1958 (Vic).

Removing costs barriers to formal administration

73 The applicable fee for obtaining a grant of probate or letters of administration in the Supreme Court Probate Office should be based on the estate’s value, in a sliding scale, with estates valued at no more than $100,000 attracting a nil fee.

Expedited grants

74 Section 11A of the Trustee Companies Act 1984 (Vic) should be repealed.

75 Section 79 of the Administration and Probate Act 1958 (Vic) should be amended to provide that, if in the course of administering a small estate under that section, State Trustees ascertains that the value of the estate exceeds 120 per cent of the adjusted upper value for small estates as set out in section 71(1), it must as soon as practicable apply in the same manner as any other person for a grant of representation.

76 Section 79(2) of the Administration and Probate Act 1958 (Vic) should be amended to require that notices of intention to administer an estate under this section should be advertised on
the Supreme Court’s website rather than in a daily newspaper.

77 Section 79 of the Administration and Probate Act 1958 (Vic) should be amended to require that the will be filed with the Supreme Court Probate Office.

Other amendments to Part II of the Administration and Probate Act

78 The following corrections of errors in the Administration and Probate Act 1958 (Vic) should be made:

(a) Section 71(2): ‘registrar of the Supreme Court’ should read ‘registrar of the Magistrates’ Court’.

(b) Section 72: the reference in the heading to the County Court registrar should be removed.

 

 

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