Probate Caveat NSW: Should I Lodge One?
Updated: Aug 14
Will Disputes, Estate Disputes
A probate caveat is a notice filed with the Supreme Court of New South Wales that pauses a grant of probate, so the person who filed it (the caveator) has a chance to be heard. It is the right tool if you have grounds to challenge whether the will is valid. It is the wrong tool if the will is valid and you simply want a different share of the estate.
If you believe a loved one’s will does not reflect their true wishes, the real question is not whether you can lodge a probate caveat in NSW, but whether you should. Lodge one without a proper basis and the Court can set it aside and order you to pay costs. This guide covers what a probate caveat does, who can lodge one, the grounds, how long it lasts, and how it is removed.
Probate Caveats in NSW: Key Points
A probate caveat pauses a grant of probate so the caveator can be heard.
A caveat in NSW is effective for six months, unless the Court decides otherwise.
Only a person with a legal interest in the estate can lodge one.
A caveat challenges the validity of the will, not its terms.
If you know someone else is about to apply for probate, serve a copy of your caveat on them within seven days of filing.
A caveat lodged without good reason can be set aside, with a costs order against you.
What is a Probate Caveat?
First, the terms. Probate is the legal process of validating a deceased person’s will so the executor can manage and distribute the estate. A caveat is a legal notice that stops a legal process until the person who lodged it (the caveator) has a chance to be heard.
So a probate caveat is a legal notice that stops the probate process. This gives the caveator time to challenge the will’s validity.
How Long Does a Probate Caveat Last in NSW?
Under Part 78 rule 69 of the Supreme Court Rules 1970 (NSW), a caveat takes effect when it is filed and lapses after six months, unless the Court orders otherwise. The Court may extend the duration of a caveat.
During those six months, the person applying for probate can ask the Court to remove the caveat, arguing that the caveator does not have a valid reason or ‘legal interest’ in the matter.
When Can You Lodge a Probate Caveat in NSW?
Under Part 78 rule 66 of the Supreme Court Rules 1970 (NSW), a person who claims an interest in an estate may file a caveat against a grant of probate being made. Because the whole point of a caveat is to stop the grant, you must file it before the grant of probate is made.
Part 78 rule 66(3) then requires you to act. If you know that someone else is applying, or intending to apply, for probate, you must serve a copy of your caveat on that person within seven days of filing it.
Who Can Lodge a Probate Caveat?
Only people with a ‘legal interest in the estate’ can lodge a probate caveat. This usually means:
Beneficiaries named in the will
Family members of the deceased
It is crucial to get legal advice before lodging a caveat. If the Court finds you do not have a good reason to file it, your caveat will be set aside, and you could be ordered to pay legal costs.
What are the Grounds for Lodging a Probate Caveat?
A probate caveat should only be used if you have grounds to challenge the validity of the will itself. Common reasons a will might be invalid include:
Improper execution: the will was not signed and witnessed correctly.
A later will exists: a more recent will revokes the current one.
Forgery: the will is a fake.
Undue influence: the person making the will (the testator) was pressured or forced.
Lack of testamentary capacity: the testator was not of sound mind when they made the will.
A probate caveat is not the right tool if you only want to challenge the terms of the will. If you feel you have not been fairly provided for but the will document is valid, you may be eligible to make a family provision claim. However, you can only lodge a family provision claim after probate has been granted.
Probate Caveat or Family Provision Claim?
The two are often confused. This table sets out the difference:
Probate caveat | Family provision claim | |
What you are disputing | Whether the will is valid | Whether you have been fairly provided for under a valid will |
Typical grounds | Improper execution, a later will, forgery, undue influence, lack of testamentary capacity | You are eligible but the will does not adequately provide for you |
Timing | At any time before a grant of probate is made | Only after probate has been granted |
Effect | Stops the probate process so you can be heard | Asks the Court to change how the estate is distributed |
How is a Probate Caveat Removed?
A probate caveat can be removed in three ways:
It expires: the caveat lapses six months after filing if the Court does not extend it (Part 78 rule 69).
The Court removes it: someone applies to the Supreme Court for an order that the caveat cease to be in force (Part 78 rule 71), and the Court agrees.
It is withdrawn: the caveator who lodged it files a notice of withdrawal (Part 78 rule 70).
The Court prefers the parties to resolve disputes about a will’s validity between themselves. If an agreement is reached, the caveator will withdraw their caveat. If not, one of the parties must start legal proceedings.
While a caveat is in force, Part 78 rule 72 requires proceedings for a grant of probate to be commenced by statement of claim. Usually, the person applying for probate files that Statement of Claim, explaining why the will is valid. The caveator then files a defence. Both sides need to provide evidence in the form of affidavits to support their case.
Talk to a NSW Probate and Estate Disputes Lawyer
Lodging a probate caveat, or applying to have one removed, is a step with real cost consequences if you get it wrong. Dormer Stanhope acts for beneficiaries, family members and executors in NSW probate and estate disputes, and can advise you on whether a caveat is the right tool before you file. Contact us to discuss your situation.
