Probate Caveats (ACT)

In the ACT, a probate caveat is a legal mechanism used to delay or prevent the grant of probate or administration of a deceased person’s estate. This is a critical tool for anyone who has concerns about the validity of a will, the eligibility of the probate applicant, or the proper administration of the estate. Lodging a probate caveat alerts the Supreme Court of the ACT to a potential dispute and ensures that the estate is not distributed until the issues are resolved. This article looks at the use of probate caveats, the process of lodging and removing a caveat, and the implications for estate administration.

What is a probate caveat?

A caveat is filed with the probate registry of the Supreme Court to prevent the issuance of a grant of probate or letters of administration. Probate is the formal process of validating a will and the appointment of an executor to distribute the estate. If there is no will, letters of administration are issued to appoint an administrator. By filing a caveat, a person essentially informs the court that there is a legal dispute or concern that needs to be addressed before probate or administration can proceed. As such, a probate caveat is often used in situations involving:

• disputes about the validity of the will
• allegations of fraud, undue influence, or forgery
• concerns about the capacity of the deceased at the time of making the will
• disagreements about who should be appointed as executor or administrator, or
• claims that the deceased did not leave a valid will (intestacy disputes).

It is important to understand that if the court finds that the caveat was lodged without reasonable grounds, the caveator may be ordered to pay the other party’s costs.

Who can lodge a probate caveat?

Under the Court Procedures Rules 2006, only someone with a provable interest in an estate can lodge a probate caveat in the ACT. Parties with an interest refers to those who would be positively or negatively affected by the pending grant of probate. This includes people who stand to benefit under the will or under intestacy laws, and those who may have a financial or legal claim against the estate. This would commonly include beneficiaries named in the will, those who were excluded from the will but want to challenge it, eligible heirs under intestacy law, creditors and those who want to contest the appointment of an executor or administrator.

It is important to note that a caveator (the person lodging the caveat) must have reasonable grounds to file a probate caveat. Certainly, the process must not be used as an instrument to cause unnecessary delays or to harass other parties involved in the estate administration. A caveat is also not the right approach for someone who intends to make a creditor’s claim or family provision claim against the estate, as these actions are only possible once the will is probated.

Grounds for lodging a probate caveat

To lodge a probate caveat, the caveator must provide a valid legal reason for their objection. The most common raised grounds include:

Challenging an invalid will

A person can lodge a probate caveat if they have serious doubts about whether a will meets the legal requirements under the Wills Act 1968. For instance, someone can challenge a will if it fails to comply with formal requirements, such as witnessing and proper signing. Other reasons that a will may be invalid include undue influence on the testator, lack of testamentary capacity and outright fraud or forgery.

Disputes over the executor or administrator

An interested person can also lodge a caveat if they have concerns that the person applying for probate or administration is unfit to act in the role. This concern might be based on suspicions of dishonesty, conflicts of interest, or incompetence.

Intestacy disputes

It is also possible to lodge a caveat if a person believes that the deceased did not have a valid will.

Lodging a probate caveat

Lodging a probate caveat in the ACT involves several steps, which must be followed carefully to ensure compliance with legal requirements.

Preparing the caveat

The caveator must prepare a caveat form, which is available from the Supreme Court of the ACT. The form asks the caveator to identify the deceased, provide their own details, and outline the grounds for lodging the caveat.

Filing the caveat

The completed caveat form must be lodged with the Supreme Court. A filing fee is payable at the time of submission. Once the caveat is filed, the Registrar of the Supreme Court will record the caveat against the estate.

Notification to relevant parties

The court will notify the person who originally applied for probate or administration (the applicant) that a caveat has been lodged. The caveator must be prepared to justify their claim and provide evidence to support their objection.

Duration of the caveat

A probate caveat typically remains in force for six months, but it can be renewed before it expires.

Disputing or removing a probate caveat

The person who originally applied for probate can respond to a caveat in several ways. They can immediately ask the court to remove the caveat if they believe that the caveat was lodged without merit or is causing unnecessary delays. Alternatively, they can issue a “warning” to the caveator, requiring them to formally state their interest in the estate. If they receive a warning, the caveator must file an “appearance” within the specified time to defend the caveat. If they fail to do so, the caveat will lapse. If the caveator does file an appearance, the dispute may proceed to a court hearing where both parties present evidence and arguments supporting their positions. The court will determine whether the caveat should remain in place or be dismissed based on these submissions. The caveat does automatically lapse after six months if not renewed.

A probate caveat is a useful tool when disputing the validity of a will, or the eligibility of an executor or administrator. In the ACT, the process of lodging or defending a probate caveat is governed by strict legal rules and requires careful preparation and evidence. If you are considering lodging a probate caveat, it is essential to seek professional legal advice to navigate the process and protect your interests effectively. Get in touch with Go To Court Lawyers on 1300 636 846.