As our population ages, it is becoming more common for a Will to be contested for its validity, where there are concerns that the deceased did not have the capacity to make the Will.

It is often the case that disappointed relatives believe a Will to be ‘unfair’ and conclude that the Will-maker must not have had capacity to make it.

What is testamentary capacity?

To have testamentary capacity, the Will-maker should have ‘sound mind, memory and understanding’. Generally, they should be able to understand what it is to make a Will, list what assets they own and identify the people they wish to benefit (or who might have a claim on their estate).

Having a treating medical doctor certify a person’s capacity to make a Will, coupled with evidence given by the witnesses to the Will and evidence from the solicitor who prepared it (if one was involved), will usually be enough to establish whether the Will-maker had capacity.

However, with the rise of elder abuse, and home-made Wills, this is not always the case, and broader investigations sometimes need to be carried out.

If I have concerns, where do I begin?

Those who typically challenge a Will on this basis, are those who received a greater interest under a prior will.

This challenge is usually done by filing a ‘probate caveat’. This is a Court document that stops a grant of probate from being issued and then requires a solemn form application to be made to the Court (for the matter to be heard by a judge).

A probate caveat ultimately stops the executor or administrator of the estate to administer the assets, until a decision has been made about the validity of the Will, the caveat runs out, or is withdrawn by the caveator.

Once the caveat is placed on the Will, further evidence will need to be compiled to support your claim as to why you think that Will should not be the last valid Will of the Will-maker.

What supporting evidence do I need?

Some of the matters and supporting evidence that the Court may consider are:

• the timeframe between the date of making the Will and the date of death;
• the cause of death (especially if dementia is noted on the death certificate);
• clinical notes obtained from the GP, hospital or nursing home;
• geriatrician, medical specialist, psychiatrist, and/or social worker reports;
• if the Will was prepared by a solicitor, the contents of their file and the solicitor’s observations of the Will-maker when the Will was made; and
• witness statements of observations of the Will-maker at or around the time the Will was made;

What happens after I file a probate caveat?

By filing a probate caveat, it may force the executor or the person on the other side to start formal proceedings in Court for the Court to determine whether the Will is valid – or it may be that you enter into discussions or negotiations with the other side.

The person propounding the Will (usually the executor named in the purported last Will) can:

1. request the Court remove the caveat if it can show that the person who filed the caveat does not have an interest in the estate;
2. can apply to have the caveat set aside if they can establish that the caveat does not ‘raise a doubt’ as to the validity of the Will; or
3. if neither of the above options is appropriate, Court proceedings to determine the validity of the Will may be commenced.

As no two capacity cases are the same, the Court will look to the circumstances in which the Will-maker gave their instructions and signed their Will.

If the Court finds that a Will is invalid because the deceased lacked the capacity to make the Will then, if the deceased had a prior Will, that Will may be relied on as the last Will. However, the Court may find that the deceased lacked testamentary capacity for one or more prior Wills (if any others exist).

Ultimately, if the court determines there is no valid Will, the rules of intestacy will apply. 

Are there any time limits?

Steps should be taken quickly, preferably within 6 months from the date of death. This is because an executor can start to make distributions under a Will once 6 months from the date of death has passed (as long as they have not received notice of any claim).

Once filed, the caveat will remain in place for 6 months from the date of filing. The caveat may be extended for further periods of 6 months each by the filing of further caveats.

If an application for probate is filed after a caveat, the Court will provide notice to both the caveator and the person who applied for probate. It is important to note that caveator then has 8 days to file a notice in support of their caveat (setting out the grounds for the caveat).  

If the caveator fails to file the notice in support, the Court can proceed to consider the application for probate as if no caveat had been filed. 

If proceedings are commended, the other party will have 28 days to file a defence upon service of the court documents.

Why legal advice is important

There are subtle and technical differences in the reasons why a caveat may be filed, and the types of caveats used.

Filing a probate caveat may have some cost implications for you.

If a caveat is later found by the Court to have been the wrong type of caveat, without proper grounds or no supporting evidence or a legal basis – the Court may set aside the caveat and order that the caveator pays the legal costs of the person propounding the Will. 

Therefore, it is essential to obtain legal advice before filing a caveat. If you have concerns that the last Will might not have been valid because of impaired capacity or have any questions about probate caveats or Will disputes, please feel free to contact us.