Question 1 

Who is ordinarily expected to get a grant of probate of a deceased person’s will?

Question 2 

Name three things which must be present in order for a will to be valid

Question 3

You act for Craig, a client who wants you to prepare a will for him. Craig says he has the following assets:

• House worth $1,000,000 which he jointly owns with his wife
• Superannuation of $350,000
• $70,000 owed to him by his brother, Greg
• Three antique cars worth $30,000 each, one of which is driven by his daughter, Lucy

Can each of these assets be gifted in Craig’s will?

Question 4 

What connection does a deceased person have to have to Victoria in order for a grant of probate of their will to be made in Victoria? (circle the correct answer)

1. They need to be domiciled in Victoria at their date of death;
2. They need to have lived in Victoria at some point during their lives;
3. They need to own assets in Victoria;
4. They need to have prepared their will in Victoria;

Question 5 

In one or two sentences, explain the difference between a ‘grant of probate’ and a ‘grant of letters of administration’.

Question 6 

You act for Simon, a 95 year old man who has asked you to prepare a will for him. What matters must you make sure you satisfy yourself of in order to form a view that Simon has testamentary capacity?

Question 7

Sam died on 31 October 2025 without a will. Sam has no children. At his death, he had been in a genuine domestic relationship with Kristy for 3 years. Sam had an earlier relationship – a marriage to Georgia. Sam and Georgia separated 10 years ago, but did not get divorced.

In accordance with the laws of intestacy, who is entitled to share in Sam’s estate?

Question 8 

You act for Luke. Luke is the executor of his father’s estate. Luke hasn’t taken any steps in administering his father’s estate. He does not want to be executor. Does Luke have to act as executor? What should he do?

Question 9 

You act for Jack, whose sister Anthea recently died.

Jack brings in a note, written in Anthea’s handwriting which reads as follows:

‘I think I don’t have much longer left. When I die, I want my brother Jack to make sure my niece Stephanie gets my house. The rest can go to my nephews. I had better see a lawyer to get this drawn up in case I change my mind.’

The note is signed in Anthea’s normal signature.

1. Does the note constitute a formal will?
2. What would Jack need to establish to the court in order to get a grant of probate of the note?
3. Do you consider the court would grant probate of the note? Why/why not?

Question 10

You act for Madeline, the executor of her brother Roderick’s estate. By his will, Roderick left his estate equally between his six children. He did not leave anything to his wife, Lenore. Probate was granted one month ago.

Madeline sends you an email as follows:

‘One of the children has asked me if they can have their share now. Is there anything stopping me from making an early distribution? I don’t want this to drag on…’

Respond to Madeline addressing the following:

1. Is she allowed she make an early distribution?
2. Is there any reason why she might not want to make an early distribution?
3. What could happen if she makes an early distribution?
4. How should Madeline respond to the beneficiary (or instruct you to respond to the beneficiary on her behalf)?

Question 11 

You act for Edward, a 21 year old student. Edward’s father Allen recently died.

Allen left a will dated 13 July 2015 which appointed Camille, Edward’s mother as executor and gave his entire estate to Camille, with a gift to Edward of his whole estate in the event that Camille predeceases him.

Allen and Camille divorced in 2019 and underwent a property settlement, in which he retained most of the marital assets, leaving both Camille and Edward destitute.

At his date of death, Allen had been in a new relationship with Daria, for 4 years. Daria has no assets of her own and was entirely reliant on Allen for financial support.

1. Who is the appropriate person to apply for a grant of representation?
2. Why?
3. Assuming no party were to make a claim pursuant to Part IV of the Administration and Probate Act 1958, how would Allen’s estate be distributed?
4. Of the Camille, Edward and Daria, who would be eligible to bring a claim against Allen’s estate for further provision and on what basis?
5. What must be established in order for the court to grant further provision from Allen’s estate?

Question 12

Refer to the previous question. In relation to each of Camille, Edward and Daria, briefly explain whether you would recommend they consider bringing an application for further provision from Allen’s estate. Explain why/why not.

Question 13 

You act for Abel. Abel’s brother Cain is the executor of their father’s estate, of which they are both beneficiaries.

Abel has the following complaints about Cain’s conduct as executor:

1. Cain organised the funeral and paid for it from the estate without consulting Abel;
2. Cain paid their father’s credit card debt off from the estate before making any distributions to either himself or Abel;
3. Cain made a large gift to charity from the estate in the name of their father, which gift wasn’t in the will;
4. It has been 2 months since their father died and Abel hasn’t received his distribution from the estate yet;
5. Cain has used estate money to pay for insurance over their father’s properties. Abel tells you their father never paid for insurance during his lifetime as he thought it was a rip off.

Advise Abel about each of these matters and whether they each constitute breaches of Cain’s duties as executor.

Question 14 

Abel instructs you that he wants Cain to be held accountable for his conduct as executor.

What forms of relief are available in the circumstances?

Question 15

Should you bring an application for construction of a will before or after probate is granted?

Assessment brief what you must deliver 

You are required to prepare answers to a 15-question assessment on wills, probate, intestacy and executor duties (Victoria context). The deliverable must:

• Answer each question clearly and accurately (Q1–Q15).

• Demonstrate applied legal knowledge (statutory rules, key authorities, and practical steps).

• Explain factual application (e.g., gifting rules, testamentary capacity, intestacy outcomes, executor obligations).

• Advise clients practically (what to do next, forms to file, risks and remedies).

• Where relevant, identify and explain required evidence, time limits and procedural options (e.g., probate, letters of administration, family provision claims, remedies against executors).

Key pointers to cover in your answers (per question):

• Q1: Who is ordinarily entitled to apply for probate the usual priority and practical steps to obtain grant.

• Q2: Formal requirements for a valid will (capacity, intention, formal execution) three essential elements.

• Q3: Classification of assets (joint property, superannuation, debts owing, chattels) and whether they pass under a will.

• Q4: The relevant connection(s) required for a Victorian grant of probate identify the correct legal test/options (don’t guess; state possible bases).

• Q5: Distinguish grant of probate vs grant of letters of administration (when each is used).

• Q6: Steps to satisfy testamentary capacity (Banks v Goodfellow style factors) and matters to record as solicitor.

• Q7: Intestacy distribution rules identify likely beneficiaries in order (spouse/partner, issue, parents, etc.) and apply to facts.

• Q8: Executor refusal/renunciation can an executor decline, what formal steps to renounce, and consequences.

• Q9: Handwritten note (holograph/ante-mortem writing) whether it can be admitted as a will or dependent on court discretion; what evidence is needed to establish testator intention and due execution (or to rely on informal writing doctrines).

• Q10: Early distribution by executor duties before distribution, risks (undiscovered liabilities, challenges), how to respond practically to beneficiary requests.

• Q11: Who should apply for representation given divorced spouse, prior will, new de facto partner; distribution if no Part IV claims; who may be eligible to bring a family provision claim and the legal elements of such a claim.

• Q12: Practical recommendations for Camille, Edward and Daria on whether to bring a family-provision claim (factors for/against).

• Q13: Analyse each complained executor action against executor duties (duty to consult, proper application of estate funds, unauthorised gifts, delays, proper expenditure).

• Q14: Remedies available to a disappointed beneficiary (claims for account, recovery, removal of executor, injunctions, tracing, equitable remedies).

• Q15: When to seek construction of a will (timing and practical considerations) before or after probate and the pros/cons of each.

How the Academic Mentor guided the student step-by-step approach

Below is the exact, practical workflow the mentor used to coach the student through this assessment so each question is answered accurately, comprehensively and defensibly.

Step 1 Clarify scope & gather materials

• Action: Reviewed the assessment brief and confirmed applicable jurisdictional sources (Victoria).

• Materials assembled: Wills Act and Administration & Probate Act (Victoria), key case law (e.g., Banks v Goodfellow principles for capacity; authorities on holograph wills and informal documents), court practice notes, and family provision (Part IV) statutory criteria.

• Why: Ensures legal statements are supported by primary sources and local procedure.

Step 2 Create an answer blueprint per question

• Action: For each question drafted a 3-part structure: (a) Legal principle/statute; (b) Application to facts; (c) Practical advice/next steps (forms, evidence, cautions).

• Why: This format meets assessment marking criteria (legal accuracy, application, practical advice).

Step 3 Research & cite authorities

• Action: Located the statutory sections and leading cases relevant to each question (e.g., formalities for wills, executor duties, intestacy rules, family provision tests). Noted procedural rules for probate/letters of administration and timelines for bringing claims.

• Why: Backed the answers with authorities so conclusions are legally defensible.

Step 4 Draft answers in plain, client-facing language plus legal footnotes

• Action: Wrote each answer in two layers: (1) a short plain-English client line (what the client needs to know/do now); (2) a concise legal explanation with statutory/case citations and practical steps (documents to prepare, forms to file, evidentiary burdens).

• Why: Demonstrates both academic understanding and ability to advise clients practically.

Step 5:  Apply facts and prepare supporting checklists/templates

• Action: For factual questions (e.g., property that can pass under a will, or intestacy outcome for Sam), produced short worked examples or tables showing who inherits and why. For process questions (probate, renunciation) prepared step checklists (forms, affidavits, timeframes).

• Why: Examiners and real clients value clear, actionable checklists.

Step 6 Peer review & accuracy check

• Action: The mentor reviewed the draft answers for legal accuracy, checked citations, and ensured the practical advice was risk-aware (e.g., cautions about early distributions, possible rights of creditors, or potential family provision claims).

• Why: Minimises errors and highlights litigation/complaint risks.

Step 7 Finalise submission package

• Action: Compiled final answers, appended a short bibliography (statutes, cases), and included templates/checklists (probate application list, renunciation form checklist, sample evidence for holograph note).

• Why: Produces a professional submission that demonstrates both theory and practical competency.

How the outcome was achieved summary of results

Deliverable produced:

• Complete set of model answers to Q1–Q15 formatted for assessment: each answer begins with the short client line, followed by legal analysis and recommended next steps.

• Supporting annexures: probate checklist; renunciation checklist; family provision application checklist; sample affidavit evidence list for informal wills; short table applying intestacy rules to Sam’s facts.

Key practical conclusions presented to the student/client (examples):

• Q1: The person usually expected to obtain probate is the executor named in the will; if none, an eligible administrator (next of kin or residual beneficiary) applies for letters of administration. (Practical step: locate original will, check executor details, prepare probate application.)

• Q3: Jointly owned house typically passes by survivorship (not by will) if held as joint tenants; superannuation may not form part of the estate if a binding death benefit nomination exists; debts owed to the deceased form part of the estate and can be called in by the executor; chattels (antique cars) can be gifted in the will identify which car is the specific gift vs general bequest.

• Q8: An executor may renounce; they are not compelled to act. Mentor provided the formal renunciation steps and the effect on administration.

• Q9: The handwritten note may be admissible as a will only if it meets statutory requirements or the court uses its discretionary power to accept non-compliant writing evidence of testamentary intention and signature required; explained the likely evidentiary hurdles and suggested practicable next steps (seek legal advice, obtain affidavits).

• Q10: Early distribution is possible but risky executors should ensure liabilities and claims are addressed first. If distributions are made prematurely, the executor may be personally liable for later claims/unknown debts.

• Q11–12: Identified who should apply for representation and who may bring a family provision claim (spouse/de facto/children). Set out the legal tests and advised which parties (Camille, Edward, Daria) have likely merits for claims and what evidence they would need.

Learning objectives covered

By completing this assessment under mentor guidance the student demonstrated ability to:

1. Interpret and apply statutory and case law on wills, probate and intestacy.

2. Identify and advise on procedural steps for probate/administration applications and executor renunciation.

3. Distinguish between different asset categories and explain how they pass on death (joint tenancy, superannuation, chattels, debts).

4. Assess testamentary capacity and testamentary formalities and prepare affidavits/evidence where required.

5. Analyse executor conduct against fiduciary and statutory duties and recommend remedial actions.

6. Evaluate potential family provision claims and advise eligible parties on prospects and required evidence.

7. Draft clear, client-facing legal advice while supporting statements with legal authority and process checklists.

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