Administration and Probate (Deposit of Wills) (Fees) Regulations 2016

The central concept of these regulations is the fee unit system, which links the prescribed fees to an annually adjustable monetary unit rather than a fixed dollar amount. Under the Monetary Units Act 2004, a fee unit has a value determined by the Treasurer for each financial year. The explanatory details in the endnotes confirm that the value for 2016-17 was $13.94, and that the Treasurer announces future values by 1 June for the following year. The fees are set at 1.6 fee units for deposit and 2.7 fee units for delivery. Multiplying the number of fee units by the current value, then rounding to the nearest 10 cents, yields the dollar fee. This mechanism ensures the fees keep pace with inflation without requiring amendment of the regulations themselves. Another key concept is the distinction between the two services: depositing a will (the initial lodgment with the registrar) and delivering a deposited will (the release of the will upon request, typically after the testator's death). The higher fee for delivery reflects the administrative cost of retrieval and verification. The exemption for deposits made because a legal practitioner has died or ceased practising in Victoria is a specific carve-out embedded in the parent Act and reproduced in the regulations as a note. Under the Interpretation of Legislation Act 1984, notes form part of the statutory rule, so the exemption has legal force within the regulatory text. The regulations themselves are subordinate legislation made under section 5B of the Administration and Probate Act 1958. They revoke the 2006 predecessor regulations (S.R. No. 90/2006) and are version 001 with no amendments. The concept of sunset - automatic repeal after 10 years - is also central; the regulations will cease to have effect on 5 July 2026 unless extended by further subordinate legislation. The interpretation provisions of the Interpretation of Legislation Act 1984 apply, meaning that headings, examples, notes, punctuation and provision numbers all form part of the regulations. The table of provisions and endnotes do not form part of the regulations, but the explanatory details about fee units are included as endnote 4, which is printed after the endnotes and does not form part of the statutory rule. Nonetheless, the endnotes contain practical guidance on fee calculation. Finally, the concept of "registrar of probates" is the officer charged with receiving deposits and delivering wills under Division 1A of Part I of the Act. The regulations do not define "will" or "deposit" because those terms are defined in the parent Act.

The regulations directly affect any person who wishes to deposit a will with the registrar of probates in Victoria under Division 1A of Part I of the Administration and Probate Act 1958. This includes testators who choose to use the official deposit facility as a secure storage option for their wills. Legal practitioners are especially affected because they often facilitate will deposits for clients, and the exemption under section 5A(3) specifically applies when a legal practitioner has died or ceased or is about to cease practising in Victoria - a circumstance in which a firm or the Legal Services Board may need to deposit wills in bulk. The regulations also affect executors, beneficiaries and other parties who request delivery of a deposited will after the testator's death; they must pay the prescribed delivery fee of 2.7 fee units. The registrar of probates and the staff of the probate office are the administrative actors who collect the fees and process deposits and deliveries. The regulations affect the wider legal profession, including estate planning lawyers, probate solicitors and paralegals, who must advise clients on the fees and ensure that correct amounts are paid. Law firms that hold wills for clients may be affected by the exemption if they are winding up a practice; they must understand that no fee is payable for deposits made in that specific context. The public at large, as potential testators, are affected because they may choose to utilise the deposit service and need to budget for the fee. Government revenue is affected because the fees are collected by the registrar and remitted to consolidated revenue. The regulations also affect accountants and financial advisers who assist clients with estate planning; they should be aware of the fees to include them in cost estimates. Finally, the regulations affect anyone who needs to obtain a copy of a deposited will after death - the delivery fee is a condition of release. The sunset provision means that all stakeholders must monitor whether the regulations are extended or replaced before 5 July 2026; otherwise the fee structure will lapse and the registrar may not be able to charge fees under these specific regulations.

The primary duty imposed by the regulations is the obligation to pay the prescribed fee when depositing a will or requesting delivery of a deposited will. For deposit, regulation 5(1) states the fee is 1.6 fee units; for delivery, regulation 5(2) states the fee is 2.7 fee units. The duty to pay arises at the time of the transaction. However, the right to exemption exists under section 5A(3) of the Act: if the deposit is made because a legal practitioner has died, or has ceased, or is about to cease practising in Victoria, no fee is payable. This is not a duty but a right to free deposit. The regulations create a corresponding duty on the registrar to accept the deposit without fee when that condition is met. For delivery, no exemption is provided in the regulations; the registrar is entitled to require payment of the delivery fee before releasing the will. The person requesting delivery has the right to receive the will upon payment of the correct fee. The regulations also impose a duty on the person calculating the fee to use the correct current value of a fee unit. Under the Monetary Units Act 2004, the value changes annually and must be applied prospectively. Therefore, a person depositing a will in a later financial year must use the value fixed for that year, not a historic value. The duty to round to the nearest 10 cents also applies. The regulations themselves do not prescribe a form of payment or the timing of payment (whether before, at, or after the transaction), but the implication of sections 5A(2) and 5C(1) of the Act is that the fee is payable "for" the service, so payment is likely required at the point of service. The revocation of the 2006 regulations means that no person may rely on the old fee amounts. The right to rely on the fee unit values as published in the Government Gazette and a Victorian newspaper is established by the Monetary Units Act 2004, which requires publication before 1 June each year. Practitioners and the public have a right to expect that the published value is the correct one for that financial year. The regulations also confer a right on any person to access the deposited will through the delivery service, subject to the fee and any conditions in the Act.

The regulations themselves do not create any penalty provisions. They are purely fee-setting in nature, and there is no regulation that imposes a fine, infringement notice or criminal sanction for non-payment or incorrect payment. Enforcement of the fee requirement likely operates through administrative refusal: the registrar would not accept a will for deposit without the required fee, and would not deliver a will unless the delivery fee is paid. This is implied from the wording of section 5A(2) of the Act, which states that a fee is payable for depositing a will, and section 5C(1) which states a fee is payable for delivery. The regulations merely set the amount; non-payment would mean the service is not provided. There is no penalty for using an incorrect fee unit value, but the registrar would require the correct amount and may reject or delay the transaction. If a person misrepresents that the exemption applies (claiming a legal practitioner has died or ceased practice when that is not the case), that could constitute an offence under other laws, such as fraud or giving false information to a public officer, but the regulations do not address this. The Subordinate Legislation Act 1994 provides a mechanism for disallowance of the regulations by Parliament, but that is not a penalty. The Monetary Units Act 2004 ensures the fee unit value is published and certain, but imposes no penalty for using an outdated value knowingly. The Interpretation of Legislation Act 1984 does not create penalties. Therefore, the enforcement of the fee regime is practical and administrative rather than punitive. The sunset provision is a form of automatic expiry but again not a penalty. Practitioners should be aware that while the regulations are simple, the consequence of non-payment is denial of service. Overpayment would be a matter for refund at the registrar's discretion. The absence of penalty provisions in the regulations is consistent with their limited scope: they merely quantify the fees authorised by the Act.

The regulations sit within a legislative framework anchored by the Administration and Probate Act 1958. They are made under section 5B of that Act and prescribe fees for services under Division 1A of Part I. The regulations give effect to the fee-setting power granted by the Act, but do not alter the substantive provisions of the Act regarding the deposit, custody, and delivery of wills. The Monetary Units Act 2004 is directly engaged because the regulations use fee units as the metric. That Act defines fee units, requires the Treasurer to fix the value annually, and mandates publication. The explanatory details in the endnotes note that the value of a fee unit for 2016-17 was $13.94 and that the value for future years must be fixed and published. The Interpretation of Legislation Act 1984 governs how the regulations are interpreted: headings, notes, examples, punctuation and provision numbers form part of the regulations. The note under regulation 5(1) about the exemption is therefore part of the rules. The Subordinate Legislation Act 1994 applies because the regulations are statutory rules. They are subject to sunset, disallowance, and the requirement for explanatory memoranda. The sunset period is 10 years from the day of making (5 July 2026). The earlier Administration and Probate (Deposit of Wills) (Fees) Regulations 2006 are revoked by regulation 4; thus the old fee structure no longer applies. There is also interaction with the Legal Profession Uniform Law or equivalent Victorian provisions regarding legal practitioners ceasing practice, but the regulations do not reference those laws; they simply adopt the exemption condition from the parent Act. The regulations do not affect the substantive law of wills, probate, or administration. They are purely subsidiary and financial. The rounding requirement interacts with the Accounting Standards or general financial practices but no specific law is cited. The fees are also subject to Goods and Services Tax (GST) considerations under Commonwealth law if the registrar is an entity that charges GST, but the regulations are silent on that. The revocation of the 2006 regulations means that any transitional provisions in that earlier instrument no longer apply. The sunset provision requires that the fees cease unless remade; if they lapse, deposits and deliveries may be made free of charge under the Act unless new regulations are passed.

The Administration and Probate (Deposit of Wills) (Fees) Regulations 2016 have not been amended since their making. The table of amendments in the endnotes states: "There are no amendments made to the Administration and Probate (Deposit of Wills) (Fees) Regulations 2016 by statutory rules, subordinate instruments and Acts." The version as at 6 July 2016 is version 001, indicating the original and only version. The regulations were made on 5 July 2016 by the Governor in Council and commenced on 6 July 2016. They revoked the predecessor regulations, which were the Administration and Probate (Deposit of Wills) (Fees) Regulations 2006 (S.R. No. 90/2006). The 2006 regulations are not reproduced, but their revocation is recorded. The current regulations have remained unchanged for the duration of their life to date. The sunset date of 5 July 2026 is approaching; unless new regulations are made before that date, the fee regime will expire. There are no amendments not in operation. The regulations are a straightforward replacement of the earlier fee schedule with updated fee unit amounts. The fee unit amounts themselves have remained at 1.6 and 2.7 fee units since commencement; however, the dollar value of those fee units changes annually due to the fee unit value adjustments under the Monetary Units Act 2004. That is not an amendment to the regulations but a change in the underlying monetary reference. The regulations contain no transitional provisions for deposits made under the old regime; the revocation in regulation 4 simply abrogates the 2006 regulations. The endnotes also note that the regulations are subject to the style changes authorised by section 54A of the Interpretation of Legislation Act 1984. Any future amendment to the regulations would need to be made by a new statutory rule, and the current table shows none exist.

The source text does not reference any litigation concerning these regulations. The regulations are brief and uncontroversial, setting two specific fee amounts. It is unlikely that they have been judicially considered, as the fees are small (approximately $22 for deposit and $38 for delivery at 2016-17 values) and the exemption narrow. Any legal challenge would more likely involve the parent Act, such as the validity of a deposit or delivery under Division 1A, rather than the quantum of fees. The regulations are purely subordinate and administrative; courts generally defer to prescribed fees unless they are ultra vires or irrational. The authority to make regulations is provided by section 5B of the Administration and Probate Act 1958, and the fees are within the class of matters that may be prescribed. No case law has been identified in the source or can be assumed. The fee unit system has been broadly accepted in Victorian legislation, and challenges to fee unit calculations are rare. If a dispute arose, it would likely concern the application of the exemption for legal practitioner cessation: for example, whether the deposit was truly made "because" of the cessation. That would be a question of fact under the parent Act, not the regulations. The regulations themselves are not ambiguous. Litigation may also arise if the registrar refuses to deliver a will for non-payment of the delivery fee, but any such action would sound in contract or statutory interpretation. The absence of litigation history is consistent with the regulations being a routine administrative instrument. The sunset provision might one day lead to litigation if the regulations expire and the registrar attempts to continue charging fees without authority, but that is prospective. Overall, the regulations have generated no reported case law.

Several features of these regulations can trap unwary practitioners. First, the fee unit value changes annually and is not included in the regulations themselves. The regulations only state the number of fee units. The actual dollar amount must be calculated using the value fixed by the Treasurer for the relevant financial year. Using a previous year's value results in an incorrect fee. The explanatory details give the 2016-17 value as $13.94, but that is illustrative only and becomes obsolete after that year. Second, rounding to the nearest 10 cents can cause confusion. The calculation may yield a number with cents, and the rounding method must be applied precisely. Third, the fee for delivery (2.7 units) is significantly higher than the deposit fee (1.6 units). This may surprise testators or executors who expect a symmetrical fee. Fourth, the exemption for legal practitioner cessation only applies to deposits, not to delivery requests. There is no fee waiver for retrieving a will even if the testator died or the practitioner ceased practice. Fifth, the exemption applies only if the deposit is made "because" of the death or cessation. If a legal practitioner routinely deposits wills and later ceases practice, deposits made earlier for other reasons do not qualify. The deposit must be causally linked to the cessation. Sixth, the regulations revoke the 2006 regulations in full. Any practice relying on the old fee amounts is non-compliant. Seventh, the sunset on 5 July 2026 is absolute. After that date, these regulations cease to operate. If no replacement regulations are made, the registrar may not have authority to charge fees for deposit and delivery, or the fee amounts become unenforceable until new regulations are passed. Practitioners with long-term estate plans should verify that the fee regime is still in force. Eighth, the note about the exemption is part of the regulations (per the Interpretation of Legislation Act 1984) and must be given full effect; it is not merely explanatory. Ninth, the regulations do not address method of payment; practitioners must check with the registrar whether cash, cheque, electronic transfer, or credit card is accepted. Tenth, the fees are expressed in fee units but no de minimis exception exists for small deposits; the full fee is payable even for a single will.

Compliance with the Administration and Probate (Deposit of Wills) (Fees) Regulations 2016 requires a straightforward but careful approach. For any deposit of a will with the registrar of probates, the depositor must calculate and pay the prescribed fee of 1.6 fee units. To calculate the dollar amount, obtain the current value of a fee unit for the financial year in which the deposit occurs. The value is determined by the Treasurer under the Monetary Units Act 2004 and published in the Government Gazette and a Victorian newspaper before 1 June of the preceding financial year. For example, if depositing in the 2024-25 financial year, locate the fee unit value for that year. Multiply 1.6 by that value. Round the product to the nearest 10 cents. Pay that amount to the registrar. If the deposit is made because a legal practitioner has died, or has ceased, or is about to cease practising in Victoria, the fee is waived. The depositor must have documentation or evidence establishing that causal link; otherwise the fee is payable. For delivery of a deposited will, the person requesting the will must pay 2.7 fee units, calculated and rounded in the same manner. There is no exemption for delivery. The registrar will likely require payment before releasing the will. Keep a record of the transaction, including receipt of payment. If you are a legal practitioner handling the cessation of a practice, ensure that any wills deposited under the exemption are clearly identified and the basis documented. For law firms or trustees planning for the future, monitor the sunset date of 5 July 2026. If the regulations are not extended or replaced by that date, the fee structure may lapse; contact the probate office for guidance. When requesting delivery, confirm the correct fee amount with the registrar if unsure. Do not assume the fee amount from a prior year. Because the fee units are fixed but the dollar value varies, internal fee schedules should be updated each financial year. If you are acting for a client, disclose the fee as a disbursement. For large-scale bulk deposits, the same per-will fee applies; no volume discount exists. If you overpay, seek a refund from the registrar. If you underpay, the transaction may be delayed. Compliance is simple: use the correct fee unit value, apply rounding, pay the correct amount, and assert the exemption only when it genuinely applies.