Victorian Grant of Representation is a necessary prerequisite to Part IV claim

Wills and Estates: 23 March 2019

The recent decision of the Victorian Supreme Court in O'Brien v Hall [2015] VSC 52 confirms that a Victorian Grant of Representation must exist before Part IV proceedings can be issued. Without a Grant, the proceeding is a nullity, and may be summarily dismissed.

Prior to this there had been no previous Victorian authority on whether or not a Part IV application could be issued prior to a Grant, and there were conflicting authorities from other jurisdictions.

In this case the deceased died in Victoria, and was survived by his second wife (the Defendant executor and sole beneficiary of the estate) and three adult children from his first marriage (one of whom was the Plaintiff). In his Will the deceased appointed his widow the sole executor, and left his entire estate to her.

All Victorian assets, including the deceased's home and bank accounts, were jointly owned by the deceased and his widow, and therefore passed to her by survivorship without forming part of his estate. The only valuable asset in the deceased's estate at the date of his death was his interest in the
administered estate of his late mother, Margery Hall, who had predeceased him. The only asset in Margery's estate was her real property in the UK. Consequently, the Defendant obtained a Grant of Probate in the UK. The property in the UK was sold and the proceeds due to the deceased's estate, being approximately $301,000, were distributed to the Defendant widow in Victoria. A few months after the distribution, the Plaintiff issued a Part IV claim in Victoria. The Defendant had not applied for a Victorian Grant or reseal, as it was not necessary, and had no intention to apply.

The Defendant made an application to summarily dismiss the Plaintiff's Part IV claim on the basis that firstly, there was no jurisdiction to hear a Part IV application where there was no Victorian Grant of Representation, and secondly, there was no estate in Victoria over which an order could be made, as the only valuable asset in the UK had already been distributed to the sole beneficiary.    

After a detailed analysis of decisions from other jurisdictions and the wording of the relevant sections of the Victorian Administration and Probate Act 1958, Associate Justice Derham decided that the Victorian position was that a Grant of Representation is necessary before Part IV claims can be issued. The Plaintiff's claim was dismissed on the basis that the Victorian Court had no jurisdiction without a Grant, and it was unnecessary to decide whether or not there was Victorian estate.

The decision may cause problems for the numerous claims which were issued last year prior to a Grant, due to uncertainty about when the changes to the Part IV legislation pursuant to the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 would commence. These proceedings are technically nullities, although in practice there would be little point in the estate incurring the cost of a summary dismissal application if the proceedings could then be reissued after the Grant, if it is subsequently obtained.

There may be difficulties for potential Part IV claimants in circumstances where a Grant is not necessary for the estate to be administered. They must then rely on their rights to compel the executor to obtain a Grant pursuant to section 15 of the Administration and Probate Act 1958, before they could issue Part IV proceedings.