What is a Probate Caveat?
Personal representatives are often required to apply for a grant of probate of a deceased’s will as a necessary procedure during the course of administering an estate. If the validity of a will is challenged, parties claiming to have an interest in the estate can file Probate Caveats at the Supreme Court requesting a halt to the progress of the probate application.
A caveat prevents the Court from issuing a grant of probate until the claim made by the person who lodged the caveat, is resolved. The aim of the Probate Caveat is to prevent the personal representative from administering the estate until the issue of the validity of the will is resolved.
When Probate Caveats should be filed
Interested parties should only file Probate Caveats if there is sufficient evidence that the deceased’s will is invalid due to;
- Deceased not having mental capacity when making the will;
- Will was made as a result of undue influence, coercion or unconscionable conduct;
- Will was not signed or witnessed correctly;
- Will was borne of fraudulent acts or suspicious circumstances; or
- There is a later will revoking the earlier will.
Who is ‘eligible’ to file a Probate Caveat?
Only people who ‘have an interest in the estate’. These include:
- A potential beneficiary who would have been entitled under intestacy; or
- An executor or beneficiary of an earlier will.
Probate Caveats should not be filed just because a person is dissatisfied with the contents of the will.
If it is found that the party filing the Probate Caveat has no proper right or reason to support the caveat, it will be set aside by the court and a costs order may be made against the person who lodged it.
A Probate Caveat must be filed before a grant of probate has been issued and it will remain in place for 6 months until it lapses, unless it is withdrawn or extended.
Link to other will and estate planning articles.
Should you have any questions with respect to the validity of a will, please contact us for a more detailed discussion so that we may ascertain whether filing a Probate Caveat might be appropriate in your circumstances.