What is a Probate Caveat?
A caveat is a notice to the Supreme Court of Queensland which has the effect of preventing the Court from issuing a grant of representation to a person until the claim made by the person who filed the caveat (“the caveator”) has been resolved.
A caveat must be filed in the Supreme Court before a grant of representation has been issued. This means the caveat can be filed before or after an application for a grant has been made. Once the caveat has been registered, the caveat will remain in place for six (6) months unless it is withdrawn by the caveator, or it is successfully revoked by an application to the Court. If the caveat is not withdrawn or revoked after six (6) months have expired, the caveator is entitled to file a further caveat to extend the time period of effect.
Caveat Procedure
If an application for a grant is filed, the Supreme Court will provide notice to both the caveator and the applicant. The caveator will then have eight (8) days from the notice to file a Notice in Support of Caveat. If the caveator fails to file the notice, the Court may proceed to consider the application as if the caveat had not been filed.
When may a Probate Caveat be necessary?
It may be appropriate for a person to file a probate caveat if they intend to challenge the legitimacy of a Will. For example, if there are concerns about the testator not having testamentary capacity, or being unduly influenced, at the time of executing their Will.
A caveat may also be filed to prevent an unsuitable person from being appointed as an Executor or Administrator.
You should not file a caveat if you are a creditor or intend to make a Family Provision Application.
If you wish to file a caveat, you should first seek legal advice to determine whether doing so is appropriate in your circumstances.
Who is eligible to file a probate caveat?
Technically, any person who claims an interest in an estate can file a probate caveat. Generally, this will be a person who is named in a previous Will or, where there is no Will, is someone who is entitled to inherit under the rules of intestacy (i.e., next of kin).
Even when a person is eligible, a caveat should not be filed without genuine cause. It is important for you to consider that if the Court determines that you filed the caveat without a legal or evidentiary basis, it may award adverse costs against you and force you to reimburse the estate for the costs of challenging the caveat. Further, if it is determined that the caveat was filed without reasonable grounds, you may be liable to pay damages to anyone who suffers loss or damage because of the delay in the administration of the estate caused by the caveat.
With this in mind, it is important that you speak to an experienced Wills and Estates Lawyer in Cairns beforehand to confirm if you are eligible, and have sufficient grounds, to file a probate caveat.