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Contesting a Will and filing caveats

If there are issues with a Will or in an estate, there is an option of filing a ‘caveat over the Will’ or a ‘caveat over the estate’.

The impact of lodging a caveat over a Will or in an estate is that the executor or administrator is unable to take any steps to gain a grant of probate or letters of administration.

Generally speaking, the filing of a caveat brings the estate to a complete halt where no steps can be taken until such time as the issues outlined in the caveat are resolved.

From the outset, it is important for me to stress that filing a caveat should not be done lightly. If a caveat is filed over a Will and it is found there was no basis for the caveat to be filed, there may be a risk of a significant costs implications for the person who filed the caveat.

Accordingly, it is critical you ‘have your ducks in a row’ before you file a caveat.

When should I consider filing a caveat?

Generally speaking, you might consider filing a caveat if one of the below circumstances exist:

  1. If the deceased made their last Will at a time where they may not have had capacity. For example, if the deceased had dementia, Alzheimer’s or some neurocognitive disorder. If the deceased did not have capacity when they made their last Will, there may be a question on whether the Will is in fact the deceased’s last valid Will.
  2. There are suspicious circumstances around the preparing of the Will (i.e. if it is signed at home or prepared by a major beneficiary) or fraud in relation to the last Will, filing a caveat in the estate may be appropriate.
  3. If the wrong person is applying for a grant of probate or letters of administration. For example, if a deceased died without a Will, generally their de facto spouse will hold priority to apply for a grant of letters of administration. However, if there is a genuine argument as to whether the partner was in fact a de facto spouse, filing a caveat in the estate may be appropriate.
  4. If there are questions in relation to the proper signing of the Will. For example, if there are questions in relation to the identity of one or both of the witnesses.

What is the process to file a caveat?

Filing a caveat itself is a simple process. It is a proforma court document that is generally prepared by your solicitor and delivered to the Court to file over the estate or Will.

It is the process leading up to the filing of the caveat that is critical. 

Before you file a caveat, it is important to make sure you seek advice on the circumstances that might exist. 

In most cases, I will work with our client to closely consider the events around the signing of the Will or the time of death to ensure there is a basis for the filing of a caveat. 

Sometimes, it is the case that no documentary evidence may be available. For example, medical records may not be accessible, or a witness cannot be located. However, where the case has been closely considered, the evidence supporting the filing of the caveat can be sourced after the caveat has been filed, working with the other parties in the matter.

What are the risks if a caveat is filed and the circumstances have not been properly considered?

Filing a caveat over a Will or in an estate is a significant act because it brings the administration of the estate to a complete halt.  

Once the caveat is filed, the estate must deal with the issues raised by the caveat before the administration can continue. This may deal with gaining and reviewing extensive medical records, holding a mediation, obtaining a specialist doctor’s opinion. This type of work can incur significant delays and costs. 

It is for this reason that the Court takes the filing of caveat very seriously. If the estate is brought to a halt, and it is later found that there was no basis for the caveat, and the caveat is not withdrawn, the Court may order that the party who filed the caveat pay the costs incurred for both themselves and the estate.

If you are dealing with an estate where a caveat has been filed, or if you think there may be grounds to file a caveat in an estate, please do not hesitate to contact me.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now