Where there are questions as to the validity of a will, lodging a caveat over the will is an option which will give you time to investigate your questions. Having said that, there can be severe cost implications where a caveat is not for its proper purpose, so it is important to act reasonably and diligently.
What is a probate caveat?
A caveat is a document that is filed with the court which prevents a Grant of Probate or Letters of Administration being issued.
Who can file a caveat?
A person claiming to have an interest in an estate may file a caveat. For example:
- a person who is an executor or a beneficiary under an earlier will; and/or
- a person who would be entitled to an inheritance under the rules of intestacy.
How can a caveat be removed?
Once a caveat has been filed the probate registrar cannot take any steps in respect of the application for the grant unless:
- the caveat withdrawn;
- the caveat is set aside by the court; or
- the court orders otherwise in relation to the caveat.
How long is a caveat valid for?
From the time that the caveat is filed, it remains in force for 6 months. The caveat may be renewed for a further 6 months by filing a new caveat.
Where a caveat is filed, and the party who filed the caveat has provided a notice in support of the caveat, then the caveat will not need to be renewed for a further 6 months. The caveat will remain in place until removed by one of the ways set out above.
What types of caveats are there?
In Queensland, the court rules provide for three types of caveats which can be filed over a will. Only one of the caveats can be filed, you cannot choose more than one. A caveat may be:
- a caveat against a grant for the estate – this is a general caveat. This type of caveat should be filed where there are questions as to capacity, fraud, suspicious circumstances etc; or
- a caveat requiring any application for a grant to be referred to the court as constituted by a judge – this type of caveat should be filed where there is a question as to who should be applying for probate; or
- a caveat requiring proof in solemn form of any will of the deceased – this type of caveat should be filed where there is an issue in relation to the signing of the will.
What should you do immediately after filing a caveat?
If you have filed a caveat, it is important to act reasonably and diligently. Immediately after filing the caveat you should begin to obtain evidence and legal advice in relation to your concerns about the will.
Why should you seek advice before filing a caveat?
There can be severe cost implications when dealing with caveats. For example, if a caveat is filed and it turns out once proceedings have commenced that the wrong caveat was filed, you could be liable for not only your costs but the costs of the other party.
If you are in circumstances concerning a caveat, whether you believe you should be filing a caveat or if a caveat has been filed over a will you are the executor of, please do not hesitate to contact me.
I acknowledge the paper ‘A Caveat About Caveats (and Costs)’ by Jeff Otto of Counsel, which has assisted me to write this blog.
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