11 February 2022
Estates - Revocation of grant and interlocutory injunction
We act for a client whose spouse died leaving no children and no will.
The deceased's parent has obtained a grant of representation for the administration of the estate upon intestacy but has not acknowledged our client as the deceased's spouse. The application has already been granted to the deceased's parent.
Our client was unable to apply for a grant directly since the deceased's parent failed to report them on the deceased's death certificate. We have now had this amended.
How do we stop the administration of the estate where an application has been granted to the incorrect person? Additionally, what steps can we take to protect the estate?
Thank you for the question.
Where the grant of administration has been obtained irregularly or unlawfully the Supreme Court can revoke the application. From the information given it appears that the administrator’s affidavit would not have been truthful regarding the spouse being eligible for administration. If so, this would provide sufficient grounds for revocation.
The application for revocation is made by summons in the same proceedings as the original grant: r 11.02 of the Supreme Court (Administration and Probate) Rules 2014.
To protect the estate’s assets from distribution the client can apply for an interlocutory injunction when they apply for the revocation.
See Jasarevic v Nesovanovic [2017] VSC 267 and Re Gunn; Thomas v Gunn [2019] VSC 772 for guidance on revocation and Bradto Pty Ltd v Victoria [2006] VSCA 89 for guidance on interlocutory injunctions.
Regards
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