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Probate Caveat (ACT)

A person who intends to challenge a will should first file a probate caveat with the Supreme Court of the Australian Capital Territory. This caveat will serve as a notice to the court not to issue a probate grant for a specific will until the challenge is addressed and either upheld or dismissed. This article defines the nature and purpose of a probate caveat and explains the application process.

What Is A Probate Caveat?

The word caveat comes from the Latin cavēre, meaning “to be on guard”. A probate caveat is a form of legal notice that “warns” the court that there is an issue with the will and it should not be probated until evidence is heard on the matter. In essence, this caveat temporarily prevents the estate’s executor or administrator from obtaining a grant to administer the deceased estate. The caveat stays current for six months or until the court makes an order to extend or revoke the caveat. The executor or administrator can apply to remove the caveat if they can prove that the caveator lacks the required interest in the matter.

When Should A Claimant File A Probate Caveat?

A person should file a probate caveat if they intend to challenge the validity of a will. A will can be deemed invalid if it is not executed according to the statutory guidelines, is not the most current version, if it is fraudulent, or created under duress. There is also a reason to invalidate a will if the testator lacked testamentary capacity and did not comprehend the effect of making a will. A caveat should also be filed if there are doubts as to the executor or administrator’s ability to competently administrate the estate.

Who Can File A Probate Caveat?

In the ACT, the Court Procedures Rules 2006 stipulate that only those with a provable  “interest in an estate” may file a probate caveat with the court. Parties with an interest are those who would be affected (either positively or negatively) by the grant of probate. In legal terms, those with an interest are typically current or prospective beneficiaries of a will or intestate estate or family members of the deceased.

A probate caveat is not the right approach for anyone who intends to make a family provision claim or creditor claim, as they can only make a claim against a probated estate. It is highly recommended that a prospective caveator seek legal advice, as an experienced solicitor can advise on eligibility to file a caveat. If the court decides that the caveat was lodged improperly, the caveator must recompense the estate for the costs associated with defending the validity of the will.

Filing A Probate Caveat

It is important that a caveat is filed promptly before the court can grant probate of the will. The caveator should collect sufficient evidence to be able to fill out the section of Form 3.26 that requires the caveator to fully state the grounds for objection. The caveator should continue to gather evidence while the caveat is in force and as they move forward with challenging the will.

Challenging A Will

The optimal outcome for the court is that the parties in dispute (typically the executor and the caveator) should establish between themselves whether the will is invalid. If a private agreement is not possible, either party can proceed with filing a challenge with the Probate Registrar so that the court can make an impartial judgment based on the evidence. It is often the executor who initiates a proceeding through a Statement of Claim, which argues the validity of the will. The caveator then files a Defence to the Claim laying out the evidence as to the invalidity of the will. Both parties must file affidavits in support of their claim.

Possible Outcomes

If the challenge proceeds to a hearing, there are several possible outcomes. The court can dismiss the challenge and issue a grant of probate in solemn form instead of common form. On the other hand, if the caveator convinces the court that the will is invalid, the court will set aside the will and order that the estate is distributed according to a previous will. If the testator has no previous will, then the estate is subject to intestate succession law. In the ACT, an intestate estate is distributed to the closest next of kin in a statutory order of succession. Typically, the deceased’s spouse and children inherit the assets of the deceased estate.

If you have doubts about the validity of a loved one’s will, you should act without delay and consult a solicitor. The contested wills team can assist you with every step, including filing a probate caveat, negotiating with the executor and representing you in a hearing. Please contact or telephone our experienced team on 1300 038 223 for assistance in this matter or any other questions on deceased estates, testamentary law and probate.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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