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Probate Caveat (Vic)

Someone who means to challenge a will should first lodge a probate caveat with the Supreme Court of Victoria. This caveat will notify the court that there are issues with the will that must be heard before the will is granted probate. This article explains the purpose of a probate caveat and how it relates to challenging a will in Victoria.

What Is A Probate Caveat?

A probate caveat is a legal notice that cautions the Supreme Court from issuing a grant of probate until a challenge is heard against the validity of the will. The cautionary caveat temporarily prevents an executor or administrator from administrating the deceased estate according to the wishes expressed in the will. A caveator can use this instrument to protect their interest in an estate while using this delay to seek legal advice and collect further evidence of the will’s invalidity.

The testator’s personal representative can petition the court for the removal of the caveat if the caveator lacks sufficient interest in the matter to challenge the will. Otherwise, the caveat lasts for six months or until extended or revoked.

When Is it Warranted?

Anyone who intends to challenge the validity of a will should, if possible, file a probate caveat. Someone can query the validity of a will if it was not made in line with statutory guidelines, was created fraudulently or under duress, or there is a newer will. Another reason to dispute a will is if the testator was not capable of understanding the effect of making a will as they lacked testamentary capacity. Finally, a caveat is necessary if there are questions over the suitability of the executor or administrator to competently administrate the deceased estate.

Who Can File A Probate Caveat?

In Victoria, the Administration and Probate Act 1958 allows anyone to file a caveat against a probate application. However, as a probate caveat is a precursor to challenging the will, only those who are authorised to file a challenge should lodge a caveat. A caveator must have standing to challenge a will, otherwise the caveat will be dismissed, the will probated, and the caveator could be subject to an adverse costs order.

Case Studies

In Gardiner v Hughes (2017), the court established principles for assessing standing in Victoria. In this recent case, the court found that a caveator must demonstrate a sufficient interest in the deceased estate, in that their rights would be affected if probate were granted. For example, a beneficiary under intestacy (that is, someone who would inherit from the estate if the will was found invalid) has sufficient interest to challenge the validity of a will.

The high bar of standing was affirmed in Govindan v Charan (2020), which examined the caveat of someone who was trying to prevent a successful challenge against the current will. The caveator was the beneficiary of the deceased’s personal jewellery under the most recent will and so the caveator did not want the challenge to be successful because they did not benefit under the two previous wills. The court dismissed the caveat because the caveator’s “interest” was insufficient to warrant a delay in the distribution of the estate and the costs that the estate would incur from the proceedings.

This decision confirms the instruction under the Civil Procedure Act 2010 that any civil litigation, including a challenge, must be proportional to the amount or issue in dispute. As such, a caveat should not be filed to protect a nominal or small value interest in an estate.

Who Should Not File A Probate Caveat?

A probate caveat is not an appropriate route for a creditor with a claim against the estate or for anyone who intends to make a Testators Family Maintenance Claim. These types of claims can only be made against a probated will, so stalling the probate process with a caveat would only delay their claim.

A prospective caveator should consult a solicitor before filing a caveat. If the court finds that a caveat was filed without a proper legal or evidentiary basis, it may award costs against the caveator so they have to pay the costs of the estate to defend the will.

How To File A Probate Caveat

A caveat can be filed either before or after someone applies for a Grant of Probate, but not after the court grants probate of the will. It is still possible to challenge a will after this point, but the challenger will have added difficulty as they must apply to the court to have the Grant of Probate revoked.

The Supreme Court typically processes a probate application in Victoria in a few days, instead of the weeks that it previously took to assess a paper application. As such, a prospective caveator must move quickly to file a probate caveat before they lose a valuable tool in protecting their interest in the estate.

If you have any questions about the validity of a will, it is essential that you act quickly to contact Armstrong Legal. Our contested wills team will protect your interests with a probate caveat, and assist you to negotiate with the executor and represent you in court. Please call 1300 038 223 without delay or contact us to make an appointment to discuss any questions you have about the process.

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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