PROBATE CAVEATS (NSW)
If you think the will of a loved one being probated is invalid or there is another will that supersedes the will being probated, then you should consider placing a caveat over the application for a grant.
You could protect your interest in the deceased’s estate, by lodging a caveat to stay the proceedings seeking Probate or Letters of Administration or resealing, until such disputes are resolved.
Grounds for lodging a Probate Caveat
A Probate Caveat could be lodged if you intend to challenge the validity of a will, where there are concerns of the will being forged, the will-maker not having testamentary capacity to make the will or the will being executed under duress.
A Probate Caveat should not be used if you wish to make a family provision claim under chapter 3 of the Succession Act 2006 (NSW), as a family provision claim is a different claim.
Who could lodge a Probate Caveat
NSW Supreme Court Rules states that a person can lodge a Probate Caveat only if they have a sufficient interest in the deceased’s estate.
As observed by Windeyer J in Poulos v Pellicer In the Estate of Culina (2004) NSWSC 504 any person with an interest or a reasonable possibility of an interest, however remote, is entitled to lodge a Probate Caveat.
However, If the caveator is unable to establish evidence that he or she had an interest in the estate concerned or a reasonable prospect of establishing such an interest, the Court may order the caveat cease to be in force and the caveator may have to pay the legal costs incurred by the estate as a result of the improperly lodged Probate Caveat.
If you are eligible to lodge a Probate Caveat, you must also act quickly as a Caveat on Probate cannot be lodged after the Court has issued a Grant of Probate or Letters of Administration.
It is important to get legal advice prior to lodging or responding to a Probate Caveat. Therefore if you have concerns about your loved one’s will or estate, it is important that you seek expert legal advice in relation to wills and probate as soon as possible to ensure that your interests are protected. You can contact one of our Estate Planning lawyers on 9635 7966.
