Probate Caveat (Qld)

The first step for anyone intending to challenge a will in Queensland is to file a probate caveat with the Supreme Court. This notifies the court that there is a problem with the will and that it should not be probated until a hearing is held to hear evidence on the validity of the will. This article outlines the role of a probate caveat in challenging a will in Queensland.

What is a Probate Caveat?

A caveator files a probate caveat with the Queensland Supreme Court to give notice that there is uncertainty as to the validity of a will. The immediate effect of this caveat is that the executor of the estate must cease administering the deceased estate until the challenge is resolved. The notice will protect a caveator’s interest in the estate while they gather evidence and seek legal advice.

The executor or administrator can request that the court remove the caveat if the caveator is not a suitably “interested” person to make the application. Otherwise, a caveat remains in place for six months unless revoked.

When Should it be filed?

Somebody should file a probate caveat if they intend to challenge the legitimacy of a will. A will may be challenged if there is a newer will, or the document is not signed and witnessed properly, or there is evidence to suggest that the will is fraudulent or the testator was forced to make the will under duress. It is not unusual for a challenge to be filed against a will if the testator suffered from dementia or a mental disorder, as a will is invalid if the testator lacked testamentary capacity and was not able to understand the consequences of making a will.

In addition, a caveat can be lodged if there are doubts over the suitability of a particular executor or administrator. In that case, a probate caveat can be filed to prevent the particular executor or administrator from being appointed as the personal representative of the deceased.

Who Is Eligible To File A Probate Caveat?

In Queensland, theoretically, anyone who claims to have an interest in a deceased estate can file a probate caveat. However, as a probate caveat precedes a challenge, it is important that the caveator checks their eligibility to eventually file a challenge against a will. The only people who can challenge a will in Queensland are those named in previous wills or who are entitled to inherit under intestacy law. As a result, the only parties who should lodge a probate caveat are beneficiaries of the will, those who were named in a previous will or those who would inherit under intestacy.

Who Should Not Lodge A Probate Caveat?

Creditors of the estate should not file a caveat, nor should someone intending to make a Family Provision Application. Both types of claimants must wait until a will is probated before making a claim against the deceased estate so a probate caveat is not an appropriate option for these claimants.

It is important that a prospective caveator consult an experienced wills and estates solicitor before moving forward with a caveat, as a will should not be challenged without genuine cause. If the court finds that a caveat has been lodged without evidentiary or legal basis, it may award adverse costs against the caveator and force them to reimburse the estate the costs of defending the challenge.

For instance, in Campbell, Campbell & Cannon [2012], an applicant who intended to make a Family Provision Claim lodged a probate caveat with the intention of preventing the distribution of an estate. The caveat was unnecessary and inappropriate in this instance. The claimant should have waited for probate to be granted and informed the executor of their intention to make a Family Provision Claim, as this notice would have prevented the distribution of the deceased estate.

Even in circumstances where a caveat is the appropriate mechanism, someone should only lodge a caveat where there is adequate evidence to support its creation. In White v Moffat [2016], for instance, the claimant believed that there was a more recent will based on thin evidence found in the documents recording the assets and liabilities of the deceased estate. The Court of Appeal stated that the claimant had lodged the caveat based on a “fixed but patently incorrect belief” in a later will, and declared that there was no legitimate basis for a caveat to prevent probate of the existing will.  The court also awarded adverse costs against the appellant, ordering that they pay the respondent’s indemnity costs of and incidental to the appeal from their share of the estate.

If you have any doubts about the validity of a will, you should act without delay to contact Armstrong Legal. Our experienced team can help you lodge a probate caveat and represent your interests in negotiations with the executor and before the Court.

Please call 1300 038 223 to talk over your legal needs or make an appointment to discuss whether a probate caveat is the appropriate course of action.