Probate Caveats (WA)

In Western Australia, a person can lodge a probate caveat to oppose a probate proceeding in the Supreme Court. The word caveat comes from the Latin cavēre (to be on guard), so a probate caveat warns that there is an issue with the will. Filing a probate caveat is the first step for anyone who wants to challenge the validity of a will because the document is outdated, fraudulent or made without testamentary capacity. This article explains the purpose of probate caveats in deceased estate administration in Western Australia.

Who Can File Probate Caveats In WA?

A person who files a probate caveat is known as a caveator. The Rules of the Supreme Court 1971 state that only those with a legitimate interest in an estate can file a probate caveat. Anyone named in the current or previous wills, including executors, trustees and beneficiaries, has a legitimate interest in the deceased estate. Also, anyone who may be a beneficiary under intestate succession legislation has the necessary standing to file a probate caveat. The applicant must clearly state their qualifying interest in the estate when filing the caveat.

Grounds for Filing

A caveator should only file a probate caveat when there is an issue with the validity of the will itself. It is important to note that someone intending to commence an inheritance claim under the Family Provision Act 1972 should not lodge a caveat. A claimant should wait until the will is probated to file a Family Provision Claim against the deceased estate.

A caveator must have reasonable grounds to challenge the validity of a will. In Western Australia, someone can lodge a probate caveat if:

• the will does not abide by the statutory drafting requirements set out in the Wills Act 1970;
• the testator revoked the will in question by destroying it or by making a new will or codicil with a revocation clause;
• there is a more recent valid will;
• the deceased lacked testamentary capacity when they executed the will;
• the testator was unduly influenced to draft the will; or
• the person applying for probate is unfit to act as a personal representative of the deceased estate.

How To File Probate Caveats

A caveator must file a probate caveat in proper form with the Supreme Court of Western Australia Probate Registry. There is no fee for this lodgement. The Probate Registry will notify the executor or administrator that a caveat has been filed and there will be a delay in probating the will. The executor or administrator has one month to apply to remove the caveat, or proceedings will commence to prove the will. At this proceeding, the parties present their case to the Registrar, who determines the will’s validity. Ultimately, the caveator must provide sufficient proof that their objection to the will is well-founded, and the circumstances warrant further investigation.

How Long Does A Probate Caveat Last?

A probate caveat is not indefinite. In Western Australia, a caveat lasts for six months but is subject to renewal, withdrawal or court order during that period. The caveat period allows the caveator enough time to make a case supporting their view that the will is invalid. For instance, if the caveator doubts the deceased’s testamentary capacity, they have six months to gather affidavits from the appropriate medical professionals and witnesses.

Outcomes

The optimal outcome is for the executor and caveator to reach an agreement privately to resolve the matter without recourse to a court proceeding. For instance, if the caveator presents the executor with a more recent will, the executor should acknowledge that the other will is superseded. If the parties cannot come to a private understanding, then either party can elect to proceed to a court hearing. The executor and caveator will each prepare an affidavit statement defending their position on the validity of the will.

There are several possible outcomes to a hearing on the validity of a will. The court can dismiss the challenge altogether and grant probate in solemn form, or the court can uphold the challenge and set aside the invalid will. If the will is found invalid, the court can choose to validate the most recent valid will, or if there is no valid document, order that the estate is distributed according to intestacy rules.

It is highly advisable to take legal advice before proceeding with a probate caveat as the court can force you to reimburse the estate’s legal costs if your case is groundless. The Western Australian contested wills team at Armstrong Legal can help if you are thinking of filing a probate caveat. They can provide advice on everything from eligibility to your chances of successfully challenging the will. Please get in touch with our team today on 1300 038 223 for further assistance in this matter.