Probate Caveats

Wills and Estates Lawyer Sarah Slattery outlines what happens when Will is subject to a Probate Caveat. If there is no legal basis for the Caveat, the consequences can be costly.

What is a Probate Caveat?

A Probate Caveat is a legal notice that essentially acts as a warning to the Supreme Court against issuing a grant of Probate until there is confidence in a basis for believing the validity of the Will being put forward by the executor of the estate.

Is the Will valid?

A challenge to the validity of a Will can be made when there is potential that the Will was created fraudulently or under duress, or if there was another Will made by the deceased that would revoke the Will that is being admitted to Probate. A Probate Caveat could be lodged also in circumstances where an interested party has a question as to the testamentary capacity of the Willmaker at the time that the Will was made.

Who can file a caveat on a Will?

The Administration and Probate Act 1958 (Vic) allows anyone to file a Caveat against a Probate application. However, as the Caveat will generally act as a precursor to challenging the Will, only those who are eligible to make a claim against an estate should lodge a caveat, generally speaking.

Once a Caveat is filed with the Probate Registrar, a grant of Probate cannot be granted until the Caveat is either removed by the caveator or it is set aside by the Court. Given that a deceased estate can generally not be dealt with until the grant of Probate is obtained, and the estate can therefore not be distributed, in the right circumstances, the Caveat can be a powerful tool to ensure the estate is not distributed according to an invalid Will.  

Conclusion

Before considering whether lodging a Caveat would be appropriate, it is important to obtain legal advice, as in the event that the Court determines that a Caveat was lodged inappropriately, it is open to the Court to made an adverse costs order against the caveator which may lead to them being required to pay all of their own legal costs and also the costs of the estate and executors.

How Sharrock Pitman Legal can help?

The importance of an independently drafted and detailed Will cannot be underestimated. However, there are occasions where a dispute may arise when a beneficiary has doubts regarding the validity of the Will.

Before deciding to challenge a Will, it is important to establish a sound basis for doing so. Our Accredited Specialist Wills & Estates team can provide advice on the merit of a claim and prepare the relevant documents required by the Supreme Court.

For assistance please contact us on 1300 205 506 or email willsandestates@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

For further information contact  
Sarah Slattery

Sarah is an Associate Lawyer at Sharrock Pitman Legal. As a member of our Wills and Estates team, Sarah is dedicated to successfully resolving her clients matters in a cost-effective and timely manner. For further information, please contact Sarah directly on (03) 8651 3322.

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