obiter | ByLawyers News and Updates

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!

VIC – Estates – Electronic lodgement of all survivorship applications, transmission applications and standalone transfers

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From 1 March 2018 all survivorship applications, transmission applications and standalone transfers must be lodged electronically.

VIC – Estates – Effect of marriage and divorce on will beneficiaries

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Our commentary on the effects of marriage and divorce on wills has been added to. While a will is revoked by the marriage of the testator a number of exceptions apply, as per s 13 of the Wills Act. The commentary on the impact of divorce on a will is also enriched.

VIC – Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 – commenced

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VIC Wills, Powers of Attorney, Probate and Letters of Administration publications have been updated to take into the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 commenced on 1 November. Changes are made to ademption, executor commission and distribution on intestacy. Our commentaries contain details of the changes the amending Act introduces.

VIC – Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 – commenced

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ALERT: The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 commenced on 1 November. Changes are made to ademption, executor commission and distribution on intestacy.

Estates VIC

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Estates

DECEMBER
  • Added to Further Information – link to LIV Capacity Guidelines and Toolkit
  • Update link regarding AFSA notes on making deceased estate bankrupt
OCTOBER
  • Initial letter to executor confirming instructions/Initial letter to spouse executor – Added paragraph on SRO notifications regarding interim distribution.
  • Commentaries – Author update on superannuation – notification of death and disappointed beneficiaries.
  • Commentaries – Update on deceased estates and foreign resident capital gains withholding payments.
  • New LINKS TO LPLC guide for executors.
  • New precedent – Letter to attorney re signing acceptance.
  • Costs Agreements
    • Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
SEPTEMBER
  • To do list – two new precedents summarising activities to be undertaken in a Probate or Administration matter.
  • Update links to Second Schedule to the Trustee Act 1958.
  • Addition to commentaries regarding whether cause of death might give rise to any compensation or damages.
JUNE 
  • LINKS TO Supreme Court Victoria – Probate Online Advertising System – Reseal advertisement – This precedent previously just contained a link to the POAS web site. It now also contains three examples of advertisements for reseal of probate, reseal of letters of administration and reseal of administration will annexed.
MAY
  • New precedent – Initial letter to creditor confirming account.
  • Letters of Administration Commentary – Update to Administrator commission content re Professional administrators.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
  • New precedent added to Probate guide – Exemplification or office copy request
  • New content added to commentary re:
  1. deceased intestate;
  2. renunciation;
  3. documents required for grant of probate;
  4. marks on wills;
  5. multiple copies of will;
  6. testamentary capacity;
  7. distribution;
  8. accounts;
  9. further information links.
FEBRUARY 
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.
  • In Probate and Letters of Administration VIC guides the commentary on dealing with the administration of assets has been expanded. What points should be considered in the sale of assets and distribution of the estate? What taxation, investment, debt, accounting and cost disclosures should be considered?

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