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Probate Caveat – Protecting your interest in a deceased estate

During a will dispute or estate dispute, it may be necessary for a party to protect their interest in the deceased’s estate by lodging a caveat against the granting of Probate or Letters of Administration. A Probate Caveat is similar to a property caveat in that it prevents further actions with the estate in the same way that a property caveat prevents further actions with land or real property.

A Probate Caveat is useful in any will dispute or estate dispute to protect your interest in the estate and prevent anyone including the Court taking any action which is adverse to your interests.

When can you lodge a Probate Caveat?

A person can lodge a Probate Caveat if they have a sufficient interest in the deceased’s estate. The interest could be:

  • a beneficiary or executor of a previous Will, where there are circumstances to suggest the later Will may be invalid; or
  • a beneficiary or executor of a later ‘informal Will’.

An eligible person considering a family provision claim does not have a legitimate interest in an estate to file a caveat. The interest of a family provision claimant does not affect the granting of Probate or Administration of the estate.

How do you lodge a Probate Caveat?

In most states in Australia, a Probate Caveat is lodged with the Supreme Court of that state or territory. Generally, it is the Supreme Court of each state and territory that has jurisdiction over succession and deceased’s estates.

In New South Wales, a Probate Caveat is lodged with the Supreme Court of NSW in a prescribed form with a fee. The Probate Caveat form provides options for what restrictions the Caveator (person filing the caveat) wants in respect of the estate. These restrictions can be:

  • to prevent any grant of Probate or Administration in respect of the Deceased without the Caveator being notified;
  • no grant of Probate or Administration without the Caveator having the opportunity to make submissions in respect of an informal Will; or
  • requiring any grant of Probate to be proved in solemn form. See our post – Grant of Probate in Solemn Form for more information.

What happens after a Probate Caveat is lodged?

Depending on the restrictions that have been included in the Probate Caveat, the next steps after lodging the Probate Caveat differ. In nearly all circumstances, however, the Caveator will need to be notified before anything further can happen with the estate.

A Probate Caveat will generally prevent any grant of Probate or Administration until it is removed.

A Probate Caveat can be removed in the following circumstances:

  • if it lapses (in New South Wales, this is 6 months after it has been filed) and the Supreme Court has not made an order extending it;
  • if the Caveator withdraws it;
  • if the Supreme Court orders its removal usually on the application by another party; or
  • the Supreme Court grants Probate or Administration of the estate to a person, usually after a contested hearing in which the Caveator participates as a party.

Usually, a Probate Caveat is filed by a party where two or more interested parties are in dispute over the validity of a Will or informal Will. The Probate Caveat whilst in force prevents any grant and usually culminates in contested probate proceedings in the Supreme Court. In those proceedings, each party usually propounds or challenges a Will or informal Will of the deceased.

If an application is made by a party for the removal of the Probate Caveat, the Caveator will have to prove to the Court that there are circumstances that establish that the validity of a Will or informal Will is in question.

More information

If you find yourself in a dispute over a Will or informal Will or considering lodging or have been served with a Probate Caveat, contact our team today for assistance and to discuss your matter.

It is important to get legal advice prior to lodging or responding to a Probate Caveat. There are cost consequences if you file a Probate Caveat without sufficient interest in the estate.

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DISCLAIMER

No part of these notes can be regarded as legal advice. Although all care has been taken in preparing all notes, readers must not alter their position or refrain from doing so in reliance on any of these notes. Stephen Wawn & Associates do not accept or undertake any duty of care to readers relating to any of these notes. All inquiries should be directed to Stephen Wawn & Associates.

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