Most applications for probate and administration are determined by the Probate Office. Sometimes an application will need to be referred to a judicial officer for determination, or there might be an application made that requires a judicial officer's consideration after probate or administration has been granted.
This page provides information about processes relevant to Probate Office proceedings that are referred to a judicial officer.
The information provided on this page is by way of procedural information only. If you want legal advice on what options may be available to you in relation to:
- contesting an application or
- wills and deceased estates proceedings, or
- you are unsure what you need to do,
you are encouraged to obtain legal advice.
Important information
The decision to start or defend legal proceedings in the Supreme Court is complex. It requires an understanding of the law and the facts of your situation.
You are encouraged to seek advice from a qualified lawyer about the merits of your position and the risk of being ordered to pay legal costs before you issue a proceeding or file a defence.
Legal proceedings in the Court can be expensive. Court fees are payable at different stages unless you have a fee waiver.
If you lose your case, you may need to pay some or all of the other party’s costs, including what they spent on lawyers and any other expenses, such as the cost of expert reports. These costs can be substantial.
The Civil Procedure Act 2010 (Vic) applies to wills and estates proceedings and imposes obligations on all parties, including self-represented litigants.
Read and consider those obligations before starting or taking a step in a proceeding.
The following resources may be of assistance.
Public resources
Fitzroy Legal Service – The Law Handbook
The Fitzroy Legal Service publishes The Law Handbook, a practical guide to the law that is written by lawyers and updated annually. There is information on wills and estates, and on understanding the law, that may be of assistance.
Library Resources
Textbooks about Victorian law regarding wills and estates may be useful and can be read at the Law Library Victoria or any major university library. Take care when researching online, as legal principles from overseas or interstate jurisdictions may differ from Victorian law. Online material might not be written by qualified lawyers and could be inaccurate.
Victoria Legal Aid
The Victoria Legal Aid website contains some basic information about wills and estates. However, Victoria Legal Aid does not provide legal advice about wills and estates.
Law Institute of Victoria – Find Your Lawyer Referral Service
The Law Institute of Victoria’s Find Your Lawyer Referral Service offers a 30-minute consultation with a lawyer free of charge. You can search for lawyers who practise in wills and estates by filling in information under ‘Legal Issue’ or selecting ‘Wills, Probate & Estates’ under ‘Area of Law’.
- Tel: 03 9607 9550
- Email: ersreenyf@yvi.nfa.nhua.nsa.vil@slarrefer
Community Legal Centres
The Federation of Community Legal Centres Vic maintains a comprehensive list of Community Legal Centres available in Victoria. However, not all Community Legal Centres are able to assist with wills and estates. The Federation also offers phone referrals.
- Ph: 1300 792 387
The Trusts, Equity and Probate List manages all Court proceedings involving wills, deceased estates and charitable or other non-commercial trusts, except for applications made in the Testators Family Maintenance List.
This includes caveat proceedings, applications for revocation of grants of representation, and applications for removal of an executor or administrator.
Visit the relevant List page for more information about each List.
The information provided below is in relation to proceedings that are commenced in the Probate Office.
There are other types of wills and deceased estates proceedings commenced in the civil jurisdiction of the Court.
You can also get help with court processes in relation to proceedings that are not commenced in the Probate Office.
What is a caveat?
A caveat is a warning placed on a court file that prevents the Court from granting probate or administration. For more information on caveats, refer to Order 8 of the Supreme Court (Administration and Probate) Rules 2023.
Filing a caveat could result in legal costs being ordered against the caveator. If you are considering filing a caveat, you are encouraged to obtain legal advice.
How do I file a caveat?
A caveat is filed by completing the online form and paying the caveat filing fee on RedCrest-Probate.
When can a caveat be filed?
A caveat can be filed in relation to a deceased person’s estate after that person has died and before a grant of probate or administration has been made.
Does a caveat expire?
Yes, a caveat expires 6 months after it is filed.
However, if the Registrar of Probates gives notice pursuant to rule 8.02 of the Supreme Court (Administration and Probate) Rules 2023, the caveat expires 30 days after the notice is given, unless a grounds of caveator's objection is filed or the Court orders that the caveat does not expire.
How do I withdraw a caveat?
A caveat can be withdrawn by filing a withdrawal of caveat via RedCrest-Probate.
What are grounds of caveator’s objection?
Grounds of caveator’s objection is a document which sets out the caveator’s objection(s) as to why a grant of probate or administration ought not be made.
Grounds of caveator’s objection are filed by a caveator via RedCrest-Probate.
What is a caveat summons?
A caveat summons is a document which enables an application for probate or administration to be listed for hearing before a judicial officer. A caveat summons is to be filed via RedCrest-Probate after grounds of caveator’s objection have been filed. Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
What is an application to revoke a grant?
After a grant of probate or administration has been made, an application can be made to a judicial officer seeking an order be made to revoke the grant of probate or administration. This is often done because the grant has been obtained irregularly or unlawfully. For more information on applications for revocation, refer to Order 11 of the Supreme Court (Administration and Probate) Rules 2023.
Filing an application to revoke a grant could result in legal costs being ordered against the applicant. If you are considering filing an application to revoke a grant you are encouraged to obtain legal advice.
How do I file an application to revoke a grant?
A summons for revocation along with the supporting documents are filed via RedCrest-Probate.
See Order 11 of the Supreme Court (Administration and Probate) Rules 2023 for information on what document is required in support of the application. Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
What are grounds of revocation?
Grounds of revocation is a document which sets out the applicant’s grounds as to why a grant of probate or administration should be revoked. Grounds of revocation are filed if the person applying to revoke the grant is not the plaintiff who originally obtained the grant.
Discovery of a later will is a common ground for revocation. The grounds will depend on the facts relevant to each application, and the Probate Office cannot provide guidance on what should be included in the grounds.
Grounds of revocation are filed by an applicant via RedCrest-Probate.
What is a revocation summons?
A revocation summons is a document which enables an application for revocation of a grant of probate or administration to be listed for hearing before a judicial officer. A revocation summons is to be filed via RedCrest-Probate along with the document required pursuant to Order 11 of the Supreme Court (Administration and Probate) Rules 2023 in support of the application.
Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
When can an application to revoke a grant be filed?
An application for revocation of a grant of probate or administration can only be filed after a grant of probate or administration has been made.
What is an application to rectify a will?
An application to rectify a will can be made pursuant to section 31 of the Wills Act 1997 where the will does not carry out the testator’s intention because of either a clerical error or the will does not give effect to the testator’s instructions. For more information on applications to rectify, refer to Order 12 of the Supreme Court (Administration and Probate) Rules 2023 and section 31 of the Wills Act 1997.
Filing an application for rectification could result in legal costs being ordered against the applicant. If you are considering filing an application to rectify a will you are encouraged to obtain legal advice.
How do I file an application to rectify a will?
A rectification summons along with the supporting documents are filed via RedCrest-Probate.
See Order 12 of the Supreme Court (Administration and Probate) Rules 2023 for information on what document is required in support of the application. Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
What is a rectification summons?
A rectification summons is a document which enables an application to rectify the will to be listed for hearing before a judicial officer. A rectification summons is to be filed via RedCrest-Probate along with the document required pursuant to Order 12 of the Supreme Court (Administration and Probate) Rules 2023 in support of the application.
Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
When can an application to rectify a will be filed?
An application to rectify a will can be filed after a grant of probate or administration has been made. See section 31 of the Wills Act 1997 for more information in relation to time limits and extension of time.
What is an application for commission?
An application for commission (payment of a percentage of the estate) can be made pursuant to section 65 of the Administration and Probate Act 1958 by an executor or administrator of an estate. For more information on applications for commission, refer to Order 10 of the Supreme Court (Administration and Probate) Rules 2023 and sections 65 to 65E of the Administration and Probate Act 1958.
Filing an application for commission could result in legal costs being ordered against the applicant. If you are considering filing an application for commission you are encouraged to obtain legal advice.
How do I file an application for commission?
Before making an application for commission the applicant must file an administration account verified by affidavit via RedCrest-Probate. Following the administration account being accepted for filing, a commission summons along with the supporting affidavit must be filed via RedCrest-Probate.
See Order 10 of the Supreme Court (Administration and Probate) Rules 2023 for full information on applications for commission, including the template Form 3-10B Affidavit in support of application for commission. Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
What is a commission summons?
A commission summons is a document which enables an application for commission to be listed for hearing before a judicial officer. A commission summons is to be filed via RedCrest-Probate along with the affidavit in support required pursuant to Order 10 of the Supreme Court (Administration and Probate) Rules 2023.
Before filing a summons you will need to obtain a hearing date from the Trusts, Equity and Probate List.
When can an application for commission be filed?
An application for commission can be filed after a grant of probate or administration has been made. Before filing an application for commission, an administration account verified by affidavit must be filed.