Victorian Consolidated Regulations Victorian Consolidated Regulations(1) Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased.
(2) Without limiting paragraph (1), a proceeding brought against "the estate of A.B. deceased" shall be taken to have been brought against the deceased's estate in accordance with that paragraph.
(3) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and no grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the estate of the deceased in accordance with paragraph (1).
(4) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and a grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the personal representative of the deceased as representing the estate of the deceased.
(5) In a proceeding within paragraph (1) or (3), the Court—
(a) may—
(i) appoint a person to represent the estate of the deceased for the purpose of the proceeding; or
(ii) if a grant of representation has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party to the proceeding; and
(b) may order that the proceeding be carried on against the person so appointed or against the personal representative, as if that person or representative had been substituted for the estate.
(6) Where, after the commencement of a proceeding within paragraph (1) or (3), the Incorporated Nominal Defendant has been appointed administrator ad litem of the estate of the deceased person under section 158 of the Transport Accident Act 1986 , the Court may for the purpose of paragraph (5), if the cause of action falls within section 158 of that Act, order that the Incorporated Nominal Defendant be appointed to represent the estate of the deceased.
(7) In any proceeding within paragraph (4), the Court may order that the personal representative of the deceased be made a party, and that the proceeding be carried on against the personal representative as representing the estate of the deceased.
(8) An application for an order under paragraph (5) or (7) shall be made during the period of validity for service of the writ or other originating process, unless the Court otherwise orders.
(9) Before making an order under paragraph (5) or (6), the Court may require notice to be given to—
(a) any insurer of the deceased who has an interest in the proceeding; and
(b) any person having an interest in the estate.
(10) Where no grant of representation has been made any judgment or order given or made in the proceeding shall bind the estate of the deceased to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceeding.
Rule 9.08(11) amended by S.R. No. 124/2019 rule 25(1).
(11) In this Rule "grant of representation" means an order granting probate or administration in Victoria or the resealing of a foreign grant in Victoria.
Rule 9.08(12) inserted by S.R. No. 124/2019 rule 25(2).
(12) Despite the amendment of the definition of grant of representation by the Supreme Court (Probate E-filing and Other Amendments) Rules 2019, that definition as in force immediately before that amendment continues to apply in respect of any grant issued before the commencement of Part 2 of those Rules.