Caveats in Probate Proceedings

Date: Jul 24, 2014
Document Type: Article

The function of a caveat in probate proceedings is to obtain a stay of proceedings seeking probate, administration or resealing except upon notice to the caveator, i.e. the person who lodges the caveat.

Lodging the caveat is the appropriate way for a person to obtain a stay of proceedings seeking probate, administration or resealing except upon notice to the caveator.

A caveat cannot be lodged after a grant of Probate has been made. If a caveat is lodged after a grant is made it will serve no purpose.

There are 3 different types of caveats:

(A) Caveat requiring proof in solemn form.

The lodging of this caveat requires the Will to be proved in solemn form and entitles the caveator to cross-examine witnesses called for that purpose but only as to the issue of execution of the Will. The caveator is not allowed to raise issues such as testamentary capacity, undue influence or fraud.

(B) General caveat:

This form of caveat has a much wider scope than a caveat requiring proof in solemn form and operates to preclude the making of orders for a grant of probate of a will or reseal without notifying the caveator. This form of general caveat is the appropriate caveat where the caveator seeks to raise for example an issue of invalidity other than want of due execution.

(C) Caveat concerning an informal testamentary instrument:

This form of caveat can be lodged by anyone whose interest in the estate of the deceased might be affected by the Court making a decision involving an informal will unless the caveator is giving the opportunity to participate in those parts of the proceedings which relate to the informal will. The caveator is not allowed to raise issues such as testamentary capacity, undue influence or fraud.

WHO CAN LODGE A CAVEAT

Anyone who has a relevant interest in the estate of the deceased.

The caveat must state fully the nature of the interest claimed by the caveator.

If a caveat is lodged by someone without a relevant interest the applicant for the grant of probate affected by the caveat can apply for an order that the caveat cease to be in force and the caveator pay the costs of that application.

HOW LONG DOES A CAVEAT LAST

A caveat takes effect on the date of filing the caveat and unless the Court otherwise orders, lapses after six months. The Court , on application, may extend the period of duration of a caveat. The Application to extend the duration of the caveat must be lodged within the 6 month period of lodging the caveat.

On the lapsing of a caveat the position is as if no caveat had been lodged and the Court will grant probate without requiring notice to be given to the caveator.

To speak with an experienced estate lawyer about matters involving wills and estates call us on 02 8268 4000.

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