Concerned a Will Is Invalid? How a Probate Caveat Can Help

A grant of probate is an Order made by the NSW Supreme Court confirming that the Will of a deceased person is valid and the nominated Executor can distribute the estate as described in the Will.

A grant of probate in common form means that there has been no challenge to the validity of a Will, and there are no suspicious circumstances to prevent the Court from declaring the Will valid. A grant in solemn form means the Will was challenged, but after careful deliberation, the Court could declare it valid.

Inheritance disputes often relate to whether a deceased person’s Will is valid. A probate caveat may have a key role to play in such an event.

What is a caveat on probate?

A probate caveat is a document filed in Court to delay or prevent a potentially invalid Will from being given legal recognition before an investigation can be made regarding the document’s validity. The delay allows time for the caveator to gather evidence to support their challenge to the Will.

Once filed, the Executors of the Will cannot deal with the estate’s assets until the Court is satisfied that the Will in question is the last valid Will of the deceased.

When challenging the validity of a Will, this is usually done before the grant of probate. Filing the caveat ensures the Court is aware of the challenge. It also means the challenger will be advised before the Court will consider a grant of probate, and the applicant for probate may only proceed if they have given notice to the caveator of their intention to do so.

If a caveat is filed in the wrong circumstances, the Court may order the caveator to pay the costs of the other party, which they incurred in dealing with the caveat.

The types of probate caveat in NSW

There are essentially three types of caveat in NSW.

A General Form of caveat

This is the appropriate type used in most cases. It allows a person to challenge a Will on the basis of a lack of testamentary capacity or intention, fraud or undue influence. To apply it is necessary to have ‘an interest in the estate’.

A caveat in Solemn Form

This allows a challenge based on the failure to execute the documents as required by statute law. The Court will examine the evidence concerning the validity of the Will before declaring it valid or otherwise. Again, to apply, it is necessary to demonstrate an ‘interest in the estate’.

An Informal Testamentary Document caveat

This allows a challenge to a grant of probate on an informal testamentary document. The caveator must show they are an ‘affected person in relation to the estate’.

Who has the right to apply for a probate caveat when challenging a Will?

The Supreme Court Rules stipulate that only a person who has a legal ‘interest in the estate’ or who is an ‘affected person in relation to the estate’ can lodge a probate caveat. This can include a person who is potentially a beneficiary of the Will and anyone named in a previous Will.

The right to apply for a probate caveat does not include creditors, anyone intending to make a family provision claim or anyone with a Court Order, such as a Family Court Order, relating to the deceased.

If there is inadequate evidence of a material interest in the Court proceedings' outcome, the Court can remove the caveat without considering any further evidence.

When is a probate caveat no longer operative?

A probate caveat will cease in the following circumstances:

• unless extended, the caveat will run out after six months;
• the caveator withdraws it;
• proceedings have commenced, and the caveator is a defendant;
• where the caveator is unable to demonstrate an ‘interest in the estate’ or a reasonable prospect of being able to do so;
• where there is any doubt as to whether the grant ought to be made; or
• where the Court has ordered the caveator to commence proceedings, and the time limit has expired.

If the challenge is successful, the Court can set aside the invalid Will. The estate will then be distributed according to the next most recent valid Will, if there is one or according to the rules of intestacy legislation.

Illustrative case: Re Estate Capelin, deceased (2022)

The framework for using caveats in probate matters was recently reviewed in the NSW Supreme Court in Re Estate Capelin.

In this case, the Executor applied for an Order that a ‘general caveat’ against the grant of probate of the deceased’s Will cease to be in force. While it was conceded the caveator had the standing to make a challenge, the Executor submitted that sufficient evidence had not been provided to establish a prima facie case to oppose admission to probate.

The case is significant for the clarification of what prima facie means in a probate context. Some previous cases decided that a caveat could only be sustained if the person that had filed the caveat produced sufficient evidence to the Court to establish a prima facie case for opposing the grant of probate. In Re Estate Capelin, however, the judge opined that prima facie was a way of referring to the matters set out in the Court probate rules. These rules involve demonstrating that there is a doubt as to whether a grant should be made, suggesting the burden of proof is not as heavy as previous interpretations.

Contact our Wills and Probate Lawyers in Sydney, NSW

At Szabo & Associates Solicitors, we have many years of experience advising on Wills and probate. As experienced probate lawyers, we can help you apply to the Supreme Court for the grant of probate or to delay a grant if it is a case of contentious probate or a disputed Will. If you require advice on any aspect of probate, preparing or contesting a Will, please contact us on 02 9281 5088 or fill in our online contact form.