There are a number of reasons why the validity of a person’s Will may be challenged. Some of the most common reasons include:
- the person making the Will (called a “testator”) lacked the mental capacity to make a Will at the time the Will was made;
- the testator was subject to undue influence from another party;
- the testator’s knowledge and approval of the Will may be in question;
- the document was not signed or witnessed properly;
- there may be confusion about which version of the Will is most current; or
- there may be allegations the Will is fraudulent.
This article deals specifically with the procedural process of filing a caveat on a Will in Queensland.
The significance of a caveat and how to apply for one
The word caveat means ‘beware’ in Latin. In legal terms, a caveat is a legal mechanism that restrains or prevents a person from taking certain actions. Many people have heard of a caveat that can be registered on the title to real property and prevents the sale or other dealing with that real property.
When it comes to a contest regarding the validity of a Will, there is a process that allows a person interested in the Estate to file a caveat in the Supreme Court. The purpose of this type of caveat is to prevent the Court from issuing a Grant of Probate until the Court has determined if the purported Will is valid.
A Grant of Probate is the approval, or verification, of the Supreme Court that the particular Will is actually the last will and testament of the deceased, and that the person named as executor is authorised to act in that capacity.
If a person is concerned about the validity of a Will, they can lodge a caveat at any time before a Grant of Probate issues.
The only people who can lodge a caveat are those with an interest in the Estate. This will include any beneficiary named in the Will or an earlier Will, or those who would be entitled to a share in the estate if there was no Will under the rules of intestacy.
The person who files a caveat is called “the caveator”.
If an application for Probate is filed after a caveat, the Court will provide notice to both the caveator and the person who applied for Probate. The caveator then has eight days to file a notice in support of their caveat setting out the grounds for the caveat. If the caveator fails to file the notice in support, the Court can proceed to consider the application for Probate as if no caveat had been filed.
However, if notice in support of the caveat is filed and served in time, the Court is unable to take any further action or issue a Grant of Probate unless the caveat is withdrawn or set aside.
The caveat will remain in place for 6 months from the date of filing. The caveat may be extended for further periods of 6 months each by the filing of further caveats.
The person propounding the Will (usually the executor named in the Will) can request the Court remove the caveat if it can show that the person who filed the caveat does not have an interest in the Estate.
Alternatively, the person propounding the Will can apply to have the caveat set aside if they can establish that the caveat does not ‘raise a doubt’ as to the validity of the Will.
If neither of the above options is appropriate, Court proceedings to determine the validity of the Will may then be commenced by either the caveator or the person applying for Probate.
Why legal advice is important
There are subtle and technical differences in the reasons why a caveat may be filed, depending on whether the caveator is seeking to challenge the validity of the Will on the basis of lack of capacity, undue influence, lack of knowledge and approval, fraud or a document which does not meet the formal requirements for a valid Will.
It is essential to obtain professional legal advice before filing a caveat. If a caveat is later found by the Court to have no supporting evidence or a legal basis, the Court may set aside the caveat and order that the caveator pays the legal costs of the person propounding the Will.
At Delaney & Delaney, we have experienced succession lawyers who can analyse your situation and advise when a caveat is appropriate.