Probate Caveats

“Caveat” is a Latin word, cavēre, meaning “to be on guard”. In Australia, a caveat is a notice that halts proceedings in a legal matter until there is a hearing on the subject. In succession law, a caveat is lodged with the relevant Supreme Court when someone suspects that a will is invalid. The act of filing a probate caveat notifies the court that there are grounds for a challenge to the will and that they should not issue a probate grant until the claim is heard. A person should not file a Probate Caveat if they intend to contest the provisions of a will, as a claim can only be lodged after a will is probated. A probate caveat is only used when someone wants to challenge the validity of the will itself. This article examines the role of probate caveats in deceased estate administration in states and territories across Australia.

Types of Probate Caveats

There are several different types of probate caveats. In some jurisdictions in Australia, a caveat can:

• suspend an application for a grant of probate or letters of administration;
• require proof in solemn form of the will; or
• halt the distribution of the deceased estate.

The most common type of probate caveat suspends the processing of a Grant of Probate or Letters of Administration while the validity of the will is questioned. This allows the caveator the chance to substantiate their claims about the invalidity of a will.

How Long Do Probate Caveats Last?

A caveat remains in force for a full six months and can be renewed through a new filing. If the caveator has provided supporting evidence in the form of a notice to the court then they do not need to renew the caveat. The caveat will remain in force until it is withdrawn, the court orders a deviation or the order is set aside entirely. This delay allows the caveator time to gather evidence to establish their grounds to challenge the will.

Grounds For Probate Caveats

A Probate Caveat must only be lodged if the caveator has reasonable grounds to support their suspicion that the will is invalid. The requirements differ slightly according to the specific state or territory, but as a general rule reasonable grounds might include that:

• the will was not drafted according to statutory requirements;
• the will is not the most recent will;
• the testator lacked sufficient testamentary capacity to create a will;
• the testator executed the will in a particular way because of undue influence; or
• the probate applicant lacks the necessary capacity or is otherwise unqualified to act as personal representative for the deceased estate

Who Can File A Probate Caveat?

Supreme Court Rules in each jurisdiction stipulate that only those people who have a legitimate interest in the deceased estate can file a probate caveat. This includes anyone who is potentially a beneficiary under intestate succession legislation and anyone named in a current or previous will, such as an executor or beneficiary. It is not appropriate for a creditor, claimant or someone with a current court order against the deceased to file a caveat.

Filing A Probate Caveat

A caveator must have concrete suspicion that a will is invalid before filing a probate caveat, but they will have time afterwards to gather evidence to support their supposition. For example, if the challenge is related to lack of testamentary capacity, then the caveator should acquire affidavits from the testator’s physicians, expert medical professionals and any other relevant witnesses.

When someone files a Probate Caveat, the court prefers the executor and the caveator to come to an agreement privately, so that the caveat is voluntarily removed without intervention from the court. If no informal understanding is reached, either party can proceed to a hearing to discuss the merits of the claim of invalidity. Each party will prepare an affidavit statement either in defence of the claim or to the contrary.

Outcomes

There are several potential outcomes to a hearing over the validity of a will. The court may dismiss the challenge and grant probate in solemn form, or if the challenge is upheld, then the court can set aside the invalid will. If the will is found invalid then the estate is distributed according to either the next most recent and valid will, or if there is no such document, according to the rules of intestacy.

The solicitors at Armstrong Legal can advise you on whether you are an eligible caveator in your specific circumstances. It is important that you take advice on this matter as the court can force the caveator to reimburse the cost of defending the estate if they find that the lodging of the caveat was improper. Please contact our experienced contested wills team on 1300 038 223 for help filing a probate caveat, or for advice on any probate or testamentary matters.