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Probate Caveats

Disputes

Most people are familiar with the idea of placing a caveat on a property. In that situation, a property cannot be sold until the caveat is removed. It is a process which protects a third party who has some financial interest in the property. There is a similar legal concept that is sometimes applicable in the case of deceased estates, where caveats are lodged to prevent a will being admitted to probate because of an estate dispute.

There are three types of caveats on probate:

  1. General Probate Caveat

Operates to preclude the making of a grant of probate or letters of administration without notice to the caveator. This is the caveat used where the caveator seeks to raise a ground of invalidity such as fraud, testamentary capacity or undue influence.

  1. Caveat concerning informal testamentary instrument

A person lodges this kind of caveat which prevents a grant being made without the caveator being given an opportunity to take part in the proceedings which relate to the declaration. The caveator will not be able to raise issues such as testamentary capacity, fraud or undue influence.

  1. Caveat requiring proof in solemn form
    • The lodging of this caveat will require the will to be proved in solemn form and entitle the caveator to cross examine witnesses for that purpose as to whether the will was executed properly.
    • The caveator will not be able to raise issues such as undue influence, fraud or testamentary capacity.

If a caveator does not have the relevant interest, he or she may have to pay the costs of the Estate in dealing with the caveat. These costs can be quite high, given these matters are run in the Supreme Court of NSW. Repeated filing without reasonable cause of caveats is an abuse of process which in an appropriate case may be restrained by injunction.

One circumstance where caveats should not be filed is where a person intends to lodge an application for provision pursuant to the Succession Act 2006 (NSW).  Occasionally we see this in our practice from other legal practitioners who are not familiar with this jurisdiction and the process.

Where a person is seeking an order for provision, they should not lodge a caveat; it is in their interests for a grant to be made as the Court will not make an order for provision until it has made an order for a grant of probate or letters of administration.

If you have concerns about the estate of a loved one, let us know, as there may be steps that we can take to help you take action. One of those might be lodging a caveat to prevent a will from being admitted to probate.