What are they and what can they be used for?
A Probate caveat is a type of document that is lodged with the Supreme Court that prevents a grant of Probate or Letters of Administration from being granted. A caveat cannot be lodged after a grant of Probate has been made and if it has, it will serve no purpose.
It can be used to challenge the validity of a Will in instances where there may be doubt about the execution of the Will. It can also be used whether there are concerns about an executor or administrator’s ability to carry out the wishes of the deceased person or concerns as to whether they are the most appropriate person to fulfil that role.
How long do they last and how are they removed?
The Caveat will remain in force for a period of 6 months from the date that it is filed and will lapse after that time unless it is sought to be extended. The Caveat can also be withdrawn prior to the date of lapsing.
Who can lodge a Probate Caveat?
In order to have standing to lodge a Probate Caveat, the person who is concerned about a pending or current application must have a legitimate interest in the estate that warrants the Caveat being lodged. People with an ‘interest’ will be anyone who would otherwise have some right affected by a grant of Probate, such as:
- someone who is an executor or a beneficiary under a Will or earlier Will; and
- someone who may be entitled to the estate pursuant to the rules of intestacy.
The types of people who may not be entitled to lodge a Probate Caveat include:
- someone who may have a Family Provision claim against the estate;
- someone who is a creditor;
- someone with a Court Order relating to the deceased, i.e. a Family Court order.
Types of Caveats
General caveat against a grant
This type of caveat is the most appropriate in most cases and should be used where the caveat seeks to raise a ground of invalidity such as fraud, testamentary capacity or undue influence.
Caveat concerning informal testamentary instrument
When a person lodges this type of caveat, this grant is prevented from being made without the caveat being given an opportunity to take part in the proceedings which relate to the declaration. However, issues of testamentary capacity, fraud or undue influence cannot be raised by the caveator in this instance.
Caveat requiring proof in solemn form
By lodging this Caveat, the deceased’s will must be proved in solemn form and the person lodging the caveat is entitled to cross examine witnesses in relation to the proper execution of the will.
You should seek independent legal advice before lodging a Probate caveat as there are Supreme Court rules that must be followed and there may be cost implications made against you should you not have the proper basis for lodging the Caveat,
Please contact our office to speak to our Wills and estates team for further information.
Image Credit – Ivelin Radkov Nivens © Shutterstock.com