Last will document with fountain pen.

Stopping Probate using a Caveat in a Will Claim

A common issue that can arise in a Will claim is the danger that the Court may issue a Grant of Probate of a deceased’s Will, which allows the Executor to start distributing the assets to the beneficiaries listed in the Will.

To stop this happening, it is possible to lodge a Caveat with the Court which prohibits a Grant of Probate being made, until your Will Claim has been resolved. A Caveat on Probate cannot be made after a Court issued a Grant of Probate, so it is important to act quickly in lodging a Probate Caveat.

A Probate Caveat is generally used when you want to challenge the validity of the deceased’s Will for reasons including forgery, lack of testamentary capacity and undue influence.  It will also be used when it appears that a Will, has not been properly executed.

Who can lodge a Probate Caveat?

Only certain people are entitled to lodge a Probate Caveat. To be eligible you must have a relevant interest in the deceased Estate or be an affected person in relation to the deceased Estate.

You need to get expert advice on whether you are eligible to lodge a Probate Caveat because, if the Court decides that you do not have a relevant interest, or are an affected person, you may have to pay the legal costs incurred by the Estate, as a result of the improperly lodged Probate Caveat. As these proceedings are run in the Supreme Court of New South Wales these costs can be quite high.

It is not possible to use a Probate Caveat if you wish to make a family provision claim on the deceased Estate. A family provision claim is a claim by an eligible person that the deceased did not make adequate provision for their care, maintenance and education.

What happens after lodging a Probate Caveat?

After lodging a Probate Caveat, you have six months from that date to challenge the validity of the Will.

What should I do if I want to lodge a Probate Caveat?

If you want to lodge a Probate Caveat you need to act quickly as a Probate Caveat cannot be granted once the Court has issued a Grant of Probate. You need to seek expert legal advice on whether you are an eligible person to lodge a Probate Caveat and the actions that need to be taken after lodgement of the Probate Caveat. These actions include preparation of the evidence required to be filed with the Court when you challenge the Will.

If you need advice on lodging a Probate Caveat to challenge the validity of a Will you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on how to successfully lodge a Probate Caveat that is accepted by the Court. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.

Call Graeme Heckenberg on 9221 2779 and ask about our “No Win No Fee” policy for Will claims.