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Probate lodging restrictions in Victoria Australia

In Victoria Australia, Probate is handled by the Supreme Court and it has "Rules" to say who can apply for Probate and how they do it.

Some of these rules make you wonder about their purpose. The restrictions on who may lodge are a case in point. They are specified in Rule 2.05 which says in essence that an applicant for Probate must:

• physically front up to a counter in the Probate Office in Melbourne

• look in some books on the counter and

• swear an affidavit telling the Probate Office what is in its own records.

Interesting - that applicants should be asked to tell the Probate Office what is contained in its own records (and in particular whether the Probate Office has received an application from anyone else).

It seems like a completely useless procedure, but when coupled with a "rule" about who may perform this useless procedure it has the effect of protecting the probate market for lawyers.

The Rule that restricts who is allowed to make the affidavit mentioned above appears below so you can read the restrictions for yourself.

You might even have thoughts about the purpose of these restrictions - feel free to let us know what you think. Our email address is at the bottom of this page.

Extract: Rule 2. 05 Affidavit of searches

"(1) The application shall also be supported by an affidavit in accordance with this Rule made on the day the application is made-

(a) stating-

(i) that a search for any other will of the testator in the register of deposited wills maintained by the Registrar has been made and the result of that search;

(ii) whether a caveat has been lodged against the making of a grant of representation;

(iii) that a search has been made in the office of the Registrar for any previous application for a grant of representation in respect of the estate of the testator and, if a previous application has been made, the details of the application and of its result;

(iv) that the application has been fully advertised and the date of publication;

(b) exhibiting the advertisement advertising intention to make the application.

(2) An affidavit under this Rule shall be made by-

(a) the applicant; or

(b) a solicitor who has instructions to conduct the searches referred to in paragraph (1); or

(c) a person employed by or engaged and authorised by that solicitor; or

(d) the Melbourne agent of that solicitor who is himself a solicitor; or

(e) a person employed by or engaged and authorised by that Melbourne agent; or

(f) where the State Trust is the applicant, a person employed in the office of the State Trust; or

(g) where a trustee company under the Trustee Companies Act 1984 is the applicant, a person employed by that company; or

(h) a clerk in the office of the Registrar acting under Part II of the Act".

Return to Probate Kit page

31 July 2008