Often people who do not believe the terms of their loved one’s will reflect their wishes at their time of death ask ‘Should I lodge a probate caveat?’ without first understanding what a probate caveat is and when filing one is necessary.
What is a Probate Caveat?
Probate is the legal process which is sometimes required to validate a deceased person’s will in order for their estate to be administered by the executor. A caveat is a legal notice which suspends proceedings on a matter until the caveator is able to be heard. Correspondingly, a probate caveat is a legal notice which stops the process of probate from commencing in relation to a will, giving time for the caveator to prove its invalidity.
A caveat remains effective for 6 months unless the Court directs otherwise, and during that period the probate grant applicant can file to have it removed on the grounds that the caveator lacks a legitimate interest in the matter.
When Can a Probate Caveat be Lodged?
Pursuant to section 67 of the Supreme Court Rules Act 1970 (NSW), a probate caveat may be lodged with the Supreme Court at any time before a copy of an application for the grant of probate or administration is served on the applicant, or with the leave of the Court, at any time before the grant of probate or administration.
If the caveator is aware that any other person is intending to make an application for probate or administration of the estate within seven days of filing, their caveat they must serve a copy on that other person.
Who Can Lodge a Probate Caveat?
Only persons who have a ‘legal interest in the estate’ or who are ‘affected persons’ can lodge a probate caveat. This typically limits the filing of probate caveats to beneficiaries of the estate and family members of the deceased.
It is always appropriate to obtain legal advice before filing a caveat, as if the Court finds that the caveator has no proper right or reason to support filing it, it will be set aside and a costs order may be made against them.
In What Circumstances Should a Probate Caveat be Lodged?
A probate caveat should only be lodged where there are grounds to challenge the validity of a will. Circumstances in which a will may be invalid include:
Where it is not properly executed, signed and witnessed;
Where there is a later will revoking it;
Where it was forged;
Where the testator was under undue influence at the time of writing; and/or
Where the testator lacked testamentary capacity at the time of writing.
A probate caveat is not appropriate where one wishes to challenge the terms of a will. In circumstances where you feel like you have not been fairly provided for, but believe the will document itself is valid, you may be eligible to make a family provision application. However, as such interests are limited to ensuring the estate is administered correctly (rather than challenging the validity of a will), an application cannot be lodged until probate is granted.
How Does a Caveat Get Removed?
There are three ways in which a probate caveat can be removed.
If it lapses and the Court has not made an order to extend it;
By the Supreme Court following a successful application for it to be removed; or
If the caveator withdraws it.
The Court prefers for disputes as to the validity of a will to be dealt with between the parties, and where this is done the caveator will withdraw their caveat. However, where amicable resolution is not possible, one of the parties will need to commence proceedings so that the Registrar can make a decision. Usually, it is the applicant for probate who will do this by filing a Statement of Claim, which outlines their argument as to why the will is valid, following which the caveator will file their defence. Both parties will require affidavits to support their claim. Dormers can assist you with the often difficult processes of lodging a probate caveat, or applying to have one removed.
Want to learn more? Ready to speak to a lawyer? Get in touch with us.