To contest or to challenge?
There is a big difference between ‘contesting a will’ and ‘challenging a will’. Contesting a Will is when you have been left out of a Will, or feel you have been treated unfairly in a Will – to “right such wrongs” so to speak, you make a family provision claim.
To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease, or they were put under pressure to change their Will.
What is a caveat?
The word caveat comes from the Latin and literally means ‘let him beware’. Thus broadly, a caveat is classified as a legal notice to a court or public officer to suspend a certain proceeding until the notifier is given a hearing
What is probate?
Probate means proof of the Will. Once the Will has been proven to the satisfaction of the Court, probate is granted to the executor of the Will. It authorises the executor to administer the Estate to the beneficiaries.
Caveats in Will disputes – Probate Caveats
In a Will dispute a probate caveat is a document that is filed in court to prevent probate of the Will being granted.
Usually in family provision cases, parties want probate to be granted, because you can’t contest the contests of a Will, or start distributing the assets for that matter, until this process has been achieved.
Yet, if you believe that the Will which has been filed for probate was not intended by the deceased to operate as their final Will because eg they were not of sound mind when they wrote it, it was forged, or the deceased was coerced to write it, then you would lodge such a caveat.
The result of a probate caveat
After a probate caveat is filed, the proposed executors or administrators of the estate cannot administer the assets until (1) it has been proved by the court that the proposed Will is the last valid Will of the deceased person, (2) the caveat has run out, or (3) it is withdrawn by the caveator.
If it is proved that it is not the last valid Will, then that Will would be struck out and you would file probate of the previous Will. Alternatively, if there was no previous Will, the Estate would be divided according to Intestacy Law.
If you have concerns about someone’s Will it is very important that you seek legal advice as soon as possible after their death. So, to discuss your concerns, please don’t hesitate to contact the team at Hentys Lawyers today.