The grant of representation (either a grant of probate or letters of administration with the will annexed), is a sign to the world at large that the executor/s or administrator/s of the Estate have the authority to act as a deceased’s legal personal representative.

It entitles the executor/s or administrator/s to collect and distribute the Estate of the deceased. In particular, the grant of representation is the approval from the Supreme Court of Victoria that the will is valid (based on the information before them).

But what happens if a grant of representation is given to an executor/s or administrator/s in relation to:

a) a will that has been revoked by the testator during their lifetime (either accidentally or intentionally);

b) a will was not executed by the testator;

c) a will was not intended by the deceased to be their will;

d) a will was made by the testator under undue influence; or

e) where the testator lacked testamentary capacity and like matters?

If an interested party becomes aware of an issue with a grant of representation, pursuant to Order 11 of the Supreme Court (Administration and Probate) Rules 2014, they may be able to issue a summons in the proceeding where the grant of representation was given and seek that the grant of representation be revoked. An application for a new grant of representation should be made with any summons application for revocation.

Prior to or immediately after filing the summons, it is prudent for an interested party to advise the executor/s or administrator/s to whom the grant of representation was given of the application of revocation and to seek an undertaking that the executor/s or administrator/s will not take any further steps while the summons is on foot in respect of the administration of the Estate including, for example, distributing any assets.

In addition to the summons process outlined above and depending on the status of the Estate, if an interested party becomes aware that a purported executor/s or administrator/s is making an application for a grant of representation in respect of a Will which the interested party believes is invalid, prior to the grant of representation being given by the Supreme Court, the interested party may lodge a caveat over the Will to prevent the making of a grant of representation (section 58 of the Administration and Probate Act 1958 (Vic)).

The Supreme Court takes the revocation of a grant of representation and any contest in relation to the validity of a Will seriously, and the interested party applicant must show just cause that they are acting prudently in the interests of the Estate and without delay.

The decision to revoke a grant of representation is discretionary, and the Court will take into consideration numerous facts, matters and circumstances when considering to exercise its discretion, including any delay, the status of the Estate, the impact of revocation, the difference between the will to which the grant of representation was given and the will subject to the fresh application and like matters. Similar, but not identical, matters are considered in relation to any contest as to the validity of the Will, and it is important that an interested party fulsomely set out any matters of concern.

If you are a proposed executor/s or administrator/s these are our top tips to avoid an application for a revocation of a grant of representation or a contest in relation to the validity of the Will:

1. confirm that no other Wills exist for the deceased;
2. undertake relevant searches with the Supreme Court Registry and former lawyers;
3. do not delay advertising an application for a grant of representations;
4. act promptly; and,
5. seek legal advice if you have any concerns with respect to a deceased’s will.

The team at Frenkel’s is experienced in all matters of Estate administration and litigation and can assist whether you are an interested party, executor/s or administrator/s, beneficiary or otherwise. Learn more on our Estate Planning & Disputes page.