Probate is a deep subject. It is not only about a Grant of Probate or letters of administration but has another crucial aspect called Probate Caveat.
In plain words, a probate caveat is a legal notice filed by someone who wishes to contest a will. In this guide, you will learn what a probate caveat entails and when you should file one.
Probate Caveat Definition
Probate is the legal procedure that may be necessary to validate a deceased’s will in order for the executor to manage their inheritance.
However, a probate caveat is a judicial notification that halts a case’s progress until the caveator has an opportunity to be heard. Equally, a probate caveat is a notification to delay the start of the probate procedure for a will so that the caveator has time to establish the will’s invalidity.
Validity of a Probate Caveat
Filing a probate caveat gives the contesting person time to gather evidence and prepare for a court hearing.
Unless the Court orders differently, a caveat is in effect for six months. During that time, the applicant for a probate grant may seek to have the caveat withdrawn on the grounds that the caveator has no real stake in the issue.
The probate process can be lengthy and complicated, so it is crucial to have all the necessary paperwork in order before proceeding.
Reasons to File a Probate Caveat
There are many reasons why someone might want to file a probate caveat. Only those who are “affected people” or who have a “legal interest in the estate” may file a probate caveat. Thus, it is normally limited to beneficiaries of the inheritance and next of kin of the departed.
- If the person contesting the will believes that the deceased did not have the mental capacity to make a Will, they may file a caveat to having it declared invalid.
- Additionally, if there are concerns about creating the Will under duress, one can file a probate caveat to have the court take a closer look at the circumstances surrounding the creation of the will.
- If it is not correctly signed, witnessed, and performed.
- If there is a subsequent will that revokes it.
- When there are signs of forgery.
It is always wise to seek legal counsel before submitting a caveat because if the court determines that the caveator lacked the required standing or justification for doing so, the caveat will be dismissed, and they might need to pay their own costs.
Time Limit to Lodge a Caveat
A probate caveat may be filed with the Supreme Court at any time before serving the applicant with a copy of the application for the grant of probate or administration. In some cases, with the Court’s permission, it can also be filed prior to the issuance of probate or administration.
Also, the caveator must serve a copy of their caveat on anybody else they know is planning to apply for probate or estate administration within seven days of filing if they know about it.
People Not Eligible to File Caveat
Creditors with a claim against the estate or anybody wishing to submit a Testator’s Family Maintenance Claim should not use a probate caveat.
These claims can only be raised in relation to a probated Will, therefore, putting a Caveat in the way of the probate procedure would simply postpone their claim.
The Process of Filing a Probate Caveat
You should consider the following steps.
- If you are considering filing a probate caveat, it is important to seek legal advice as soon as possible. Your lawyer can help you to determine whether you have grounds for contesting the will and can assist you in gathering evidence and preparing your case.
- Once you have decided to proceed with filing a Probate Caveat, your lawyer will help you draft and file the necessary paperwork with the court.
- The Probate Registrar will notify the caveator to file a document titled “Caveator’s grounds of objection” within 30 days. It is a document that explains the reasons the will is invalid.
- If the reasons for objection are not provided within 30 days, the caveat expires, and the request for a grant of probate moves forward.
As discussed, the validity of a caveat is for 6 months. So, a fresh probate caveat is necessary if a probate application is not submitted within six months from the caveat’s filing date.
Because it is such a complex procedure, consider having a professional by your side to handle your Probate in Victoria or wherever you reside. The place is important as rules change based on your state.
Removal of Probate Caveat
A probate caveat may be lifted in one of three ways.
- If it expires and the Court has issued no extension order.
- It will be lifted when the Supreme Court grants a successful removal of it.
- Or when the caveator himself retracts it.
The caveator will remove their caveat if the court prefers that parties resolve disagreements about a will’s validity through negotiation. However, if an amicable conclusion is not feasible, one of the parties must start legal action in order for the Registrar to decide.
Typically, the applicant for probate will do this by submitting a Statement of Claim, which states their justification for believing the will to be genuine. The caveator will then provide their defence.
Here, both parties will need affidavits to back up their claims.
Filing a probate caveat can be a complicated and stressful process, but it is often necessary in order to protect your rights and interests.
If you are considering filing a probate caveat, it is important to seek legal advice as soon as possible so that you can begin gathering evidence and preparing your case.
Instead of stressing about handling it on your own, reach out to a professional. Our advice; get help from Probate Consultants with the frequently challenging procedures for submitting a probate caveat or requesting to have one withdrawn.
We hope this guide is informative enough for you to understand your next steps.