Administration and Probate Act Victoria: A Practical Guide for Estate Disputes

What the Act does

The Act regulates how the Supreme Court of Victoria grants authority to administer an estate, how administration is to be conducted, and the circumstances in which the Court may order further provision out of an estate. It is supplemented by other legislation including the Trustee Act 1958 (Vic) and the Wills Act 1997 (Vic), and by the Court's procedural rules.

Grants of representation

Probate is the grant made to an executor named in the will. Letters of administration are issued where there is no valid will (intestacy) or where no named executor is willing or able to act. Once made, the grant authorises the personal representative to collect the estate's assets, pay liabilities and distribute the residue.

Part IV: family provision

Part IV is the family provision regime — the modern descendant of the older Testator Family Maintenance jurisdiction. Two provisions do most of the work:

• Section 90 defines who is an "eligible person" and may therefore apply.
• Section 91A lists the matters the Court must have regard to in deciding whether to order provision and, if so, in what amount.

A family provision application must be made within six months of the grant. The Court has a discretion to extend time but exercises it cautiously.

Eligible persons — section 90

The categories include a current spouse or domestic partner, a former spouse or domestic partner in defined circumstances, children (with distinct treatment for minors, full-time students aged 18 to 25 and children with a disability), adult children (assessed against further section 91A criteria), stepchildren, registered caring partners, grandchildren in defined circumstances, and members of the household who were or had been dependent on the deceased.

The section 91A factors

In broad terms, the Court weighs the nature and length of the relationship; the obligations and responsibilities of the deceased; the size and nature of the estate; the financial resources and needs of the applicant and the beneficiaries; any physical, mental or intellectual disability; the applicant's age; any contribution by the applicant to the deceased's property or welfare; any benefits previously given by the deceased; whether the applicant was being maintained by the deceased before death; the character and conduct of the applicant; and the effect any order would have on other beneficiaries.

Where this fits in practice

The Act sets the framework, but every dispute turns on its facts — the evidence about the relationship, the size of the estate, the competing claims and the deceased's reasons. For Hanlons' practice in this area see contested wills and TFM claims; for administration generally see probate and deceased estates; and for testamentary planning see wills and estate planning.