What is a probate caveat?
A probate caveat allows you to stop the executor from distributing the assets of an estate. The executor will need to prove to the court that the Will is the last valid Will of the deceased.
When a person dies their Will needs to be filed with the Court so that a Grant of Probate can be made. The application includes a statement that the Will is the last valid Will of the deceased and a list assets and liabilities of the deceased.
Every application for a Grant of Probate made to the Court is required to be advertised. The purpose of advertising the application for a Grant of Probate is to allow any interested persons to object to the application. An objection to an application for a Grant of Probate can be on numerous grounds. Such as a belief that the Will being admitted to Probate is not the final Will of the deceased, or that the Will being admitted to Probate was made by the deceased under duress, or was forged!
If you believe that a Will being admitted to Probate was not the last, or valid Will of the deceased, then you need to act quickly. By lodging a Probate Caveat you can stop the Executor named in the Will from distributing any of the assets of the Estate, until it has been proved to the Court that the Will that has been admitted for Probate is the last valid Will of the deceased.
A Probate Caveat needs to be made correctly and within the time limits in order to effectively stop the distribution of the Estate. The timing on lodging a Probate Caveat is short, which is why it is so important to seek expert legal advice as soon as possible. If you miss the window of opportunity in which to lodge a Probate Caveat, it can make it very difficult to later object to the Will that has been granted Probate.
Another important reason to seek expert legal advice as soon as possible is, that penalties may apply if a Probate Caveat is not made on proper grounds. To ensure that you are not opening yourself up to a potential penalty, you need to have an expert legal adviser in this area review your evidence in relation to the objection to the Grant of Probate, to ensure that the grounds you are relying on are true and correct, to the best of your knowledge.
The procedure for lodging a Probate Caveat is subject to the Supreme Court rules, which is another good reason to make sure that you have an expert legal adviser on your side, to ensure that your application is made within time and on valid grounds.
How to remove a caveat on probate
It’s important to seek expert legal advice before removing a caveat.
- Order of Court
- The caveat lapses
- Obtaining caveator’s consent