ByLawyers News and Updates

Succession Act – SA

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The Succession Act 2023 (SA) extensively reframes South Australian succession law.

The Act commences on 1 January 2025.

It consolidates and amends existing laws relating to:

  • wills;
  • probate and administration;
  • administration of deceased estates;
  • intestacy; and
  • family provision claims.

The Succession Act contains all legislative provisions, including new provisions, relating to those areas. The new Act repeals three existing Acts:

Revised court rules and practice directions for probate, administration, contested wills, and family provision matters will follow the commencement of the new Act.

Key provisions of the new legislation include:

  • the right of certain classes of person to inspect a will of a deceased person;
  • the power of the Supreme Court to pass over applicants for a grant of probate or administration and appoint another person it considers appropriate;
  • the removal of the need for a grant to administer smaller estates;
  • additional court powers to hold executors and administrators to account;
  • codification of the application of assets to payment of debts and liabilities in solvent estates;
  • the increase to the preferential legacy for a surviving spouse of an intestate;
  • the addition of the children of first cousins of an intestate to the distribution on intestacy;
  • no entitlement of a spouse or domestic partner of an intestate to any part of an intestate’s estate if they are a party to:
    • a binding financial agreement; or
    • orders for distribution of property under the Family Law Act 1975 (Cth);
  • primary consideration of the deceased’s wishes by the court when determining whether to make a family provision order;
  • narrowing eligibility for family provision claims to:
    • exclude former partners and spouses when financial matters have already been settled;
    • require adult stepchildren to demonstrate they:
      • are disabled and vulnerable;
      • were genuinely dependent on the deceased;
      • cared for or maintained the deceased; or
      • contributed to the estate, or their parent substantially contributed to the estate;
    • require grandchildren to satisfy the court that:
      • their parents died before the deceased; or
      • they were wholly or partly maintained by the deceased.

The By Lawyers Wills (SA), Probate (SA), Letters of Administration (SA), and Family Provision Claims (SA) publications have been updated accordingly. Further updates will follow when the new court rules are available.

Estate applications – QLD

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A new system for lodging estate applications online in the Supreme Court has commenced.

New e-lodgment portal

The Queensland Courts and Tribunals Online Services Portal allows legal practitioners to electronically lodge estate applications such as for grants of probate, letters of administration, caveats, renunciations, reseals, and revocations of grants of probate.

The court’s Guide to e-lodgment for legal practitioners assists practitioners in navigating the new e-lodgment portal. A log-in using a digital identity is required.

Law firms using the portal need to create an organisation profile, which allows individual users to be added and managed. To add a new user to the portal as part of a firm, an Organisation Request Code has to be created and entered.

Staff of a law firm who log into the portal have to identify themselves as a legal practitioner, paralegal, legal assistant, or administrative officer.

The home page of the new e-lodgment portal offers three services:

  • Probate search;
  • Wills and Estates;
  • Document verification.

Probate search

Searches for applications or grants and to locate wills and estate records can be conducted through the portal.

Wills and Estates

The wills and estates service enables the user to prepare and submit estate applications which can be saved in draft.

When the application is ready, it can be submitted choosing which location the application should be filed in: Brisbane, Cairns, Townsville, or Rockhampton.

Supporting documents must be uploaded in pdf format, with a size limit of 20MB per document, before an application can be submitted.

Once the application is submitted, a reference number will issue.

The original will must be provided to the Registry together with a covering letter and the reference number.

The portal does not currently accept payments. An invoice will be sent out with a link to pay online.

When the registry has filed the application, a court file number will be allocated to the matter. This is a different number to the reference number.

The registry will confirm by email when the application has been lodged and filed, and the grant has been issued. A link to download the court sealed documents will also be provided.

Document verification

The document verification service is for financial institutions to verify the authenticity of court-issued documents provided to them by administrators or customers.

Publication updates

The By Lawyers Probate (QLD) and Letters of Administration (QLD) publications have been updated accordingly.

Probate fees – VIC

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Probate fees for applications in the Supreme Court of Victoria have increased with effect from 18 November 2024.

Changes under the Supreme Court (Fees) Amendment Regulations 2024 have the effect of dramatically increasing, in many cases, the fees payable to file an application for probate or letters of administration at the Probate Office.

The changes to include:

  • new estate value brackets and corresponding fees;
  • changes to the advertising and small estate fees;
  • a new fee for re-advertising an application; and
  • a new fee for filing an amended originating motion.

The new estate value brackets and corresponding application fees are:

Gross value of estate for commencement of an application for a grant of representation Filing fee
$0 – $249,999.99 NIL
$250,000 – $499,999.99 $514.40
$500,000 – $999,999.99 $1,028.80
$1,000,000 – $1,999,999.99 $2,400.50
$2,000,000 – $2,999,999.99 $4,801.00
$3,000,000 – $4,999,999.99 $7,185.20
$5,000,000 – $6,999,999.99 $12,002.60
$7,000,000 and over $16,803.60

The full list of fees is available on the Supreme Court’s Probate Office fees webpage.

The By Lawyers Estates (VIC) publication has been updated, including the Retainer Instructions and Costs Agreements precedents, on the Probate and Letters of Administration matter plans.

These amendments come hot on the heels of a change to the way applications for probate, letters of administration, and reseal are advertised. See our recent News and Updates post concerning probate advertising for more information.

Probate advertising – VIC

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There is a new procedure for Probate advertising in Victoria from 11 November 2024.

Applications for probate and letters of administration from that date will be advertised via RedCrest-Probate instead of the Probate Online Advertising System (POAS). The intention of the change is to streamline the process and remove the need for information to be entered twice. Practitioners will only need to use one system to search, advertise, and apply for grants of representation in Victoria.

The POAS ceases to operate on 7 November, and no probate advertising will be possible from that date until Monday, 11 November, when the new system commences.

RedCrest-Probate is the Supreme Court’s existing online filing system for all applications for grants and all documents in relation to grants.

The first step in any application is a Notice of Intention to Apply. This is now lodged and advertised via RedCrest-Probate.

All advertisements previously published on POAS remain valid for three years from their date of publication. POAS advertisements will be searchable on RedCrest-Probate once the new system commences.

The Supreme Court (Administration and Probate) Rules 2023 set out the information that must be included in the Notice of Intention to apply. There are different requirements under the rules depending on whether the application is for probate, letters of administration on intestacy, letters of administration with the will attached, or resealing a grant from another jurisdiction.

The By Lawyers Probate (VIC) and Letters of Administration (VIC) will be updated accordingly for the commencement of the new probate advertising procedure.

Estates cases – NSW

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New estates cases have been added to By Lawyers 101 Succession Answers (NSW) reference manual.

The new cases under the Estates section of the publication relate to:

Additional assets after grant

The administrator’s obligation to disclose is a continuous one. Any assets not disclosed in the initial affidavit must be disclosed to the court by way of further affidavit: r 78.91 Supreme Court Rules 1970. If an asset has come to light after the grant has been finalised, an Affidavit of Additional Assets needs to be filed.

If an updated copy of the grant is required, an Application for Exemplification also needs to be filed. An exemplification is a certified and sealed copy of a grant. The Inventory of Property does not need to be amended.

The Affidavit of Additional Assets and the Application for Exemplification are available in the By Lawyers Estates guide, on the Probate and Letters of Administration matter plans.

Vesting of interest in beneficiaries

A beneficiary can apply to the court to have their interest vest earlier than provided for in the will under the rule in Saunders v Vautier.

The High Court set out the modern formulation of the rule in Saunders v Vautier in CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 at [47]:

Under the rule in Saunders v Vautier, an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.

In Beck v Henley [2014] NSWCA 201 the Court of appeal at [35] stated that:

Adult beneficiaries who are absolutely and indefeasibly entitled have power to “overbear and defeat the intention of a testator or settlor to subject property to the continuing trusts, powers and limitations of a will or trust instrument”.

A case where the rule was not upheld has been added –  Arnott v Kiss [2014] NSWSC 1385.

The addition of these new estates cases to 101 Succession Answers (NSW) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

RedCrest-Probate – VIC

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From 1 July 2020 all applications for grants of probate and letters of administration must be filed in RedCrest-Probate, which is the Supreme Court’s online filing system.

The documents required for a grant can be completed and uploaded as PDFs into RedCrest-Probate. Alternately they can be completed using the guided questions in the system.

The original will, or any other document upon which the application for a grant is based, must still be physically filed, or posted to the Court.

In a move to make the new process as electronic as possible, the original grant is the electronic copy issued by the court. Asset holders can view the original grant through RedCrest-Probate using a unique identifier and the application number appearing on the grant.

The By Lawyers Probate and Letters of Administration guides have been updated accordingly.

Guardianship – VIC

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Changes to guardianship legislation in Victoria commence on 1 March 2020.

The Guardianship and Administration Act 2019 repeals and replaces the Guardianship and Administration Act 1986 from 1 March 2020.

Described by Attorney-General Jill Hennessy as ‘the biggest changes to Victoria’s guardianship and administration laws in more than 30 years‘, the amendments are aimed at ensuring greater protections for adults with a disability who have impaired capacity to make and participate in decisions that affect their lives.

As a result of the new legislation commentaries in the following By Lawyers Guides have been updated:

  • Probate;
  • Letters of Administration;
  • Wills;
  • Powers and Advance Care Directives;
  • County Court – Acting for the plaintiff and Acting for the defendant;
  • Magistrates Court – Acting for the plaintiff;
  • Supreme Court – Acting for the plaintiff and Acting for the defendant; and
  • Personal Injury.

When announcing the amendments, the Attorney General stated that: ‘The changes reflect a more modern understanding of decision-making capacity and disability, and ensure that a person’s will and preferences are followed where possible and appropriate.’

The updates to our Guides were overseen by our highly experienced author Rossyln Curnow.

By Lawyers are committed to always keeping our subscribers up-to-date.

Probate Registry online applications – South Australia

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From Monday 26 November 2018, all applications for probate and letters of administration in the Supreme Court Probate Registry must be filed through CourtSA – the new electronic management system that is in the process of being introduced for all South Australian courts.

As at 15 October 2018, the probate registry no longer accepts paper applications. The Court has advised that any current paper transactions where a grant is not issued by 26 November 2018, will need to be re-lodged online through CourtSA.

It is expected that the online process will ultimately streamline applications and result in faster processing times, but there clearly will be some delay in the implementation phase, as no applications can now be filed until 26 November 2018.

ACT – Estates – New publication

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We are delighted to announce a new publication by our ACT author, Doug Dawson, being a Guide for Probate and Letters of Administration (ACT).

The guide features detailed commentary, a matter plan and all necessary forms and precedents for obtaining a grant, getting in the assets and making the distribution.

The practical nature of this publication allows the practitioner to:

  • take instructions via our comprehensive and methodical instruction sheet;
  • gather information readily using our library of initial letters to asset holders;
  • make an application for probate or letters of administration with ease and confidence;
  • have a deed of release and indemnity and a deed of family arrangement immediately available in the mater when required.

We invite ACT practitioners – and those in other states who may need to conduct ACT estate matters – to explore our Probate and Letters of Administration matter plans, to appreciate the practicality and value of our publication.

New publication – NSW 101 Succession Answers, including Appointments of Enduring Guardian and Powers of Attorney

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We are delighted to release the latest in our 101 Reference Series – a comprehensive reference guide for NSW dealing with:

  • appointments of enduring guardian;
  • powers of attorney;
  • wills;
  • estates  – probate and administration;
  • family provision.

101 Succession Answers is now included for new and existing subscribers to these NSW publications:

  • Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning;
  • Estates;
  • Family Provision Claims.

This is a must-have, easy-reference resource for all firms, providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings and plain English format. The content can be cut and pasted into letters or emails to clients addressing their specific queries, either in response to an initial enquiry or during the course of the matter.

  • Who is not eligible to be appointed as an enduring guardian?
  • When is an attorney to consider that their principal is incommunicate?
  • Can a solicitor take a benefit under a will that the solicitor has witnessed?
  • Under what circumstances might a grant of probate be revoked?
  • Has the High Court considered the position of an adult child who brings a family provision claim on the basis that their estranged parent previously promised them an inheritance?

If you would like everyone in your firm to be able to readily answer questions such as these, then you will definitely benefit from 101 Succession Answers!

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