Challenging a Will or an Executor in Victoria

What is Probate:

Probate is the grant by the Supreme Court of Victoria to deal with an Estate; IE to sell assets, transfer funds and pay off debts. It is granted to an individual that applies to be ‘granted probate’ and occurs to someone that either was appointed as Executor in a Will or applies in the situation where there is no Will or the Will cannot be located (intestate).

How is Probate Granted:

With a Will – A validly made and executed last Will and Testament (‘Will’) of a deceased provides for and the determines the disposition and dissipation of assets in their estate. This is done by naming an Executor (or Executors) over the Estate and by providing instructions to the Executor in the Will; namely the provision of Beneficiaries to the Estate.

Without a Will – without a Will one must apply for Letters of Administration with the Supreme Court of Victoria. This is normally a close relative to the deceased.

Who is the executor?

An executor is normally named in a Will and has the task of obtaining a grant of probate and then doing all things necessary to facilitate the dissolution and distribution of an Estate to the Beneficiaries.

May an executor be removed?

An Executor is a fiduciary to the beneficiaries to the estate. Their behaviour is governed by the Administration and Probate ACT 1958 (Vic) and the Trustee Act 1958 (Vic). If an executor is not doing their job appropriately, they may be removed. An Executor may be held personally liable for mishandling the assets of an Estate.

As an executor, it is recommended that Probate be obtained before dealing with any assets of the estate. The reason for this is that a person who “meddles” with the assets of the estate without a grant of Probate can be held personally liable by the beneficiaries of the Will, or a person contesting the estate, for any losses incurred as a result of not having that authority from the Court.

Contesting a Will:

An eligible person under the Administration and Probate ACT 1958 (Vic) may challenge a Will if they believe that the Will was not correctly made (for various reasons including capacity and coercion of the Will maker) and apply for the Estate to be distributed in another way. Typically there is a six (6) month limit on these applications from the time that Probate is granted.

Contact Cogent Legal if you have a Part IV application of the Administration and Probate ACT 1958 (Vic) and wish to contest a Will.