Probate Caveats

Caveats are most commonly seen in property disputes, and often involve one party with an interest in the property lodging legal notice of their interest with the relevant state or territory property registrar.

What is a Probate Caveat?

The purpose of these caveats is to notify any person looking to use the property in any meaningful way, that another interest exists, and may therefore affect their legal rights in using it.

The effect of a caveat in the context of Estate law requires that a Court consider the interest in question before a grant of probate can proceed. Caveating a will allows for a Court to address the following issues before distribution of the estate proceeds:

• question of the validity of the will
• the executor’s ability to carry out the wishes of the deceased
• any other concern that may necessitate a determination by a Court.

Who Can Lodge the Caveat?

Naturally, only a specific class of people can lodge a caveat over a will. Generally speaking, the ability to lodge a caveat is restricted to only people with an ‘interest’ in the estate. As a rule of thumb, people with an ‘interest’ are those who would have some right affected by a grant of probate [1].

Some examples of people who may lodge a caveat include:

• Disinherited dependants of the deceased (i.e., people who may have a claim for Family Provision);
• A person who is an executor or beneficiary under an earlier will; or
• A person who would be entitled to an inheritance under the rules of intestacy.

What Does the Caveat Do?

Caveats on a will generally last for around 6 months, after which they either expire or are renewed by the caveator. Once a caveat is filed with the probate registrar, a grant of probate cannot occur until the caveat is either withdrawn or set aside by the Court. Bearing in mind that an Estate cannot be validly distributed until a grant of probate is made, a caveat on a will is an extremely powerful tool.

Before a grant of probate can proceed, the Courts will have to examine the cause of your caveat and attempt to resolve it – it is at this point that caveats can reveal their double-edged nature.

Given that the operation of a caveat puts a halt to a grant of probate, and the distribution of an estate, a caveator should be very sure about his/her position before he or she lodges one. In the event that the Court determines that a caveat has been lodged on unreasonable grounds, you may find yourself not only without provision under a Will (if you were not already provided for), but also paying for your own and the other sides’ legal expenses.

On the other hand, if both your interest in the Estate and your grievance with it is legitimate, a caveat gives you the opportunity for a Court to take immediate interest and make a binding determination with regards to your issue(s).

Seek the Advice of a Professional Before Lodging a Caveat

As previously mentioned, the implications for getting a caveat wrong are serious. Caveats are an extremely effective tool for preventing an invalid or inequitable distribution of an estate and their misuse does not go unpunished by Courts. Undoing a groundless or frivolous caveat on a will can incur considerable legal expense, and the person who lodged it will more often than not have to pay the costs of both sides.

If you plan on lodging a caveat on a will, or are looking to dislodge a caveat on a will make sure to seek the advice of an Estate specialist.

At Hentys, we can also help you contest wills  and  dispute inheritance.

[1]Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137.