In all Australian States and Territories, a person with an interest in the estate has the ability to lodge a Caveat seeking to halt proceedings in respect of a Grant of Probate. In some jurisdictions (including the Australian Capital Territory) a Caveat can even be lodged to prevent the distribution of assets in an estate (assuming the whole estate has not been distributed).

Lodging a Caveat can be critical in giving a Caveator (the person who lodged the Caveat) time to make further enquiries to determine and ultimately establish their grounds of challenge.

Each State and Territory has different requirements that a Caveator must be aware of. For example, in the Australian Capital Territory, a caveat may be:

  1. against a grant of probate or letters of administration for the estate;
  2. a caveat requiring proof in solemn form of the Will of the deceased person; or
  3. a caveat against the distribution of an estate.

All jurisdictions however (in some form or another) require that a caveator have sufficient grounds in order to lodge a valid Caveat and often, “sufficient grounds” is held to be present if the Caveator has a material interest that is affected by the application to prove the last Will of the testator (Re Seymour[1934] VLR 136 and Poulos v Pellicer [2004] NSWSC 504).

Sufficient grounds for objection might include where the Caveator has reasonable grounds to believe:

  • there is a later Will of the Deceased;
  • that the Deceased lacked testamentary capacity at the time of execution of the Will;
  • that the Deceased executed the Will under some undue influence; or
  • where the person seeking the Grant of Representation does not have the relevant capacity or is disqualified from applying for some reason.

In the ACT, once the Caveat is prepared and lodged with the Court, it must be served as soon as practicable (but no later than 7 days from the date of filing) on the relevant person, which could be the person applying for the Grant or the Administrator or Executor seeking to distribute the estate. The Caveat will then remain in force for 6 months unless it is set aside or withdrawn.

Lodging a Caveat against a Grant or requiring proof of the Will in Solemn Form would often mean the propounder of the Will (the person proving the Will) has the burden of proving the validity of the Will that they are seeking a Grant be issued by the Court.

Of course the evidence necessary to successfully challenge a Will will vary in each case. For example, challenging a Will on the basis that the testator lacked testamentary capacity could require a series of affidavits from the solicitor or the person who prepared the Will, the attesting witnesses, the testator’s treating medical specialists, expert medical witnesses, people who knew the deceased – the list could go on.

Lodging a Caveat should not be taken lightly. A Caveat which is lodged without sufficient grounds could present a cost risk to a Caveator if it is not withdrawn. In some instances, once lodged it cannot be withdrawn without the leave of the Court, potentially presenting further costs to the Caveator or the estate.

While the registration costs of lodging a Caveat may be relatively inexpensive (actually, it does not cost anything in the ACT), the subsequent costs implications could mean that a Caveator without sufficient grounds suffers hefty penalties for prematurely acting to prevent a Grant of Probate or Letters of Administration being issued by the court.

The key point to remember when you are considering lodging a Caveat is to be very careful, always seek legal advice as to the strengths of your case and consider the possible implications.