The term caveat” is derived from the latin word cavēre (“to be on guard”). In Australia, a caveat is a notice that stops proceedings in a legal matter until there is a hearing on the subject. In NSW succession law, a caveat is lodged with the Supreme Court of NSW when someone suspects that a Will is invalid. Filing a probate caveat puts the court on notice that there are grounds to challenge the Will and that they should not grant probate until the claim is heard. A person should not file a probate caveat if they intend to contest the provisions of a Will, as a Will must be probated before such a claim can be lodged. A probate caveat is only used when someone wants to challenge the validity of the Will itself.

Types of probate caveats

There are several different types of probate caveats. In some Australian jurisdictions, a caveat can:

1. require proof in solemn form of the Will;
2. suspend an application for a grant of probate or letters of administration; or
3. halt the distribution of the deceased estate.

The most common type of probate caveat suspends the processing of a grant of probate or letters of administration while the validity of the Will is questioned. This allows the caveator the chance to put their claims about a Will’s invalidity to the test.

How long do probate caveats last?

A caveat remains in force for six months and can be renewed through a new filing. If the caveator has provided a notice to the court as supporting evidence, they need not renew the caveat. The caveat will remain in force until:

1. it is withdrawn;
2. the court orders a deviation; or
3. the order is set aside.

This delay allows the caveator time to gather evidence establishing their grounds to challenge the Will.

Grounds for probate caveats

A caveator must have reasonable grounds to support their suspicion that the Will is invalid before lodging a probate caveat. As a general rule reasonable grounds might include that:

1. the Will is not the most recent Will;
2. the Will was not drafted according to statutory requirements;
3. the testator executed the Will in a particular way because of undue influence;
4. the probate applicant lacks the necessary capacity or is otherwise unqualified to act as personal representative for the deceased estate; or
5. the testator lacked sufficient testamentary capacity to create a Will.

Who can file a probate caveat?

Only people with a legitimate interest in the deceased estate can file a probate caveat. This includes:

1. Anyone named in a current or previous Will (such as an executor or beneficiary); and
2. anyone who is potentially a beneficiary under intestate succession legislation.

It is not appropriate for a creditor, claimant or someone with a current court order against the deceased to file a caveat.

Filing a probate caveat

A caveator must have a concrete suspicion that a Will is invalid before filing a probate caveat, but they will have time afterwards to gather evidence to support their supposition. For example, for a challenge related to lack of testamentary capacity, the caveator should acquire affidavits from expert medical professionals, the testator’s physicians, and other relevant witnesses.

When someone files a probate caveat, the court prefers the executor and the caveator to privately reach an agreement that the caveat will be voluntarily removed without the need for the court to intervene. If no informal understanding is reached, either party can proceed to a hearing where the court examines the merits of the claim of invalidity.

Outcomes

Potential outcomes to a hearing over the validity of a Will include:

1. the court dismisses the challenge and grants probate in solemn form, or
2. the challenge is upheld, and the court sets aside the invalid Will.

If the Will is found invalid then the estate is distributed according to either the next most recent and valid Will, or, if there is no such document, according to the rules of intestacy.

We can advise you on whether you are an eligible caveator in your circumstances. It is important that you are advised about this as, if the court finds that the lodging of the caveat was improper, it can force the caveator to reimburse to the defendant their costs of defending the estate.

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Contact us for free no obligation initial telephone advice regarding any probate or testamentary matters.