Probate Caveat (NSW)
When someone has cause to challenge a will, they should first file a probate caveat with the Supreme Court of New South Wales to prevent the issuance of a probate grant. This document precludes a personal representative such as an executor or administrator from obtaining a probate grant to administer the deceased estate. This article explores the nature of a probate caveat and the process of application.
What Is A Probate Caveat?
The word caveat derives from the Latin word cavēre, which translates as “to be on guard”. In Australian law, a caveat is a legal notice that suspends proceedings on a matter until the notifier is heard on the subject. A probate caveat effectively halts the process whereby a will is validated through a grant of probate, allowing the caveator an opportunity to prove the invalidity of a will. Section 145 of the Probate and Administration Act 1898 dictates that the caveator must be given notice before any application is made for a grant of probate.
A caveat remains in force for six months, unless the court makes an order to the contrary. During that period, a probate grant applicant can file to have the caveat removed on the grounds that the caveator lacks a legitimate interest in the proceedings.
Grounds For Filing A Probate Caveat
A probate caveat should not be used to contest the provisions set out in the will, as a family provision claim cannot be lodged until the will is probated. Instead, a probate caveat is warranted when there are grounds to challenge the validity of the document itself. A will may be found invalid if it is not executed properly, signed and witnessed according to statutory requirements. It will also be found invalid if it was forged, created fraudulently or the testator was placed under undue pressure to make the will. There are also grounds to invalidate a will if the testator lacked the necessary testamentary capacity to comprehend the import of making a will.
Who Can Lodge A Probate Caveat?
NSW Supreme Court Rules dictate that only those with a legal “interest in the estate”, or who are “affected persons in relation to the estate” can lodge a probate caveat. In general terms, those who are eligible to lodge a probate caveat are typically the beneficiaries of the estate and family members of the deceased. Those who should not lodge a caveat include creditors, anyone who intends to make a family provision claim and anyone with a court order against the deceased. A solicitor can provide advice on whether someone is an eligible caveator given the particular circumstances. This is an essential step because if the court finds that the caveat is improperly lodged, the caveator will have to repay the costs incurred for defending the estate.
Filing A Probate Caveat
A caveat cannot be ordered after a grant of probate is issued, so it is essential to act quickly to prevent the distribution of assets to the beneficiaries. Anyone intending to challenge a will should compile evidence of the invalidity of the will before lodging an application for a probate caveat, and continue to amass evidence while the caveat is in force. The next step after the caveat is lodged is for the caveator to challenge the will.
Filing A Challenge
The court prefers the disputing parties to establish the validity of the will between themselves if possible so that the caveat is removed voluntarily. When an informal agreement is impossible, one of the disputing parties will commence proceedings so that the Registrar can make a decision on the merits. It is typically the claimant (the applicant for probate grant) who initiates court proceedings with a Statement of Claim. The Statement of Claim outlines the argument for the validity of the will in question. The defendant (the caveator) files a Defence to the Claim setting out their evidence to the contrary argument. Both parties in the dispute need to file supporting affidavits with their claims.
In the event that a caveator proceeds to challenge a will, there are two possible outcomes. The court can dismiss a challenge to the validity of a will and grant probate in solemn form (instead of the common form that is standard when there is no challenge to the will). Alternatively, if the challenge is successful, the court can “set aside” the will, and the estate will be distributed according to the next most recent will of the deceased. In the event that no other will exists, then the estate is declared intestate and intestacy succession law will govern the distribution of the estate.
The contested wills team of solicitors at Armstrong Legal can help you file a probate caveat to protect your interests. They can also advise you on all matters related to deceased estates, probate and testamentary law. You can contact our solicitors using this form or telephone our friendly staff on 1300 038 223.