What is a ‘probate caveat’ and when should I file one?

04 March 2014 Topics: Estate planning

A probate caveat is a document that is filed in court to prevent the proposed executors or administrators of a deceased person’s estate from getting permission to administer the estate assets.

A probate caveat is used to challenge a Will document itself, for example, where someone believes that the Will was forged or was not written and approved by the deceased person. A probate caveat should not be used where someone wants to challenge the content of a Will or make a family provision application. For more information about the different types of estate challenges, see our article ‘What are the avenues to challenge a Will?’

If someone files a probate caveat in the wrong circumstances, the court may order that person to pay the costs incurred by the other party in dealing with the caveat.

 

A probate caveat must be filed shortly after a deceased person’s death and before probate or letters of administration are granted by the court. The time for filing the caveat will be determined by advertising that is placed by the proposed executors or administrators. The advertisement will state the date by which any caveat must be filed.

After a probate caveat is filed, the proposed executors or administrators of the estate cannot administer the assets until it has been proved to the court that the proposed Will is the last valid Will of the deceased person. The type and length of proceedings involved will depend on the grounds of the probate caveat.

If you do not file a probate caveat before probate or letters of administration are granted by the court, it is very difficult to contest the Will document later on.

Therefore, if you have concerns about someone’s Will, it is very important that you seek legal advice as soon as possible after they die to make sure that you start proceedings within time and on the correct basis.

To discuss your rights or concerns in relation to someone’s Will, please contact a member of our estate disputes team today.

Written by Hannah Kulaga, Lawyer

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.