What Is A Probate Caveat In Queensland And Who Should File One?

A probate caveat is a step you take when you want to challenge or contest a Will document when you believe a Will was forged or was not approved by the deceased person. A probate caveat document is filed with the Supreme Court in Queensland to prevent the administrators or executors of a deceased person’s estate from obtaining probate of the Will. 

However, a probate caveat should not be used to challenge the content of a will or make a family provision application. If you file a probate caveat in the wrong circumstances, you may be liable to pay the costs incurred by the other party in dealing with the caveat. These costs can be significant, so it’s important to act reasonably and diligently.

In this article, we outline everything you need to know about a probate caveat, including how and why it’s helpful when you’re contesting a will in Queensland.

What Is A Probate Caveat?

In short, a caveat is a document filed with the Supreme Court of Queensland to give notice about uncertainty over the validity of the Will. The caveat prevents a Grant of Probate or Letters of Administration from being issued.  The effect of a probate caveat in Queensland is that the estate executor should immediately stop administering the deceased estate until the Will challenge is resolved. 

Once the caveat is in place, it will protect the caveator’s interest in the estate and provide them with enough time to gather evidence and seek legal advice. If the executor or administrator believes that the caveator is not a “suitably interested person” to make the application, they can request that the court remove the caveat. However, if a suitable person files the caveat, it will usually remain in place for six months.  

Who Is Eligible To File A Probate Caveat In Queensland

In theory, anyone in Queensland who claims to have an interest in a deceased estate can file a probate caveat. However, a probate caveat comes before a challenge, so it’s crucial that the caveator investigates their eligibility to eventually file a challenge against the will. The only people eligible to challenge a will in Queensland are those named in the last will, previous wills or who are entitled to inherit under intestacy law. As a result, the only parties who should lodge a probate caveat are:

  • A person who is a beneficiary or an executor under the last will or an earlier will; and
  • A person who would be entitled to an inheritance under the rules of intestacy.

In our article What Happens if You Die Without A Will in Queensland, you can learn more about intestacy.

Who Should Not File A Probate Caveat In Queensland?

A probate caveat is not an appropriate option for creditors of the estate or anyone intending to make a family provision application.. 

It’s highly recommended that a prospective caveator speaks with an experienced probate and wills and estate solicitor before moving ahead with a caveat, as a will should not be challenged without genuine cause. Suppose the court finds that the caveat was without a proper legal basis or evidence. In that case, it could force the caveator to reimburse the estate for any costs associated with defending the challenge. So, it’s essential to lay out the details and reasons for wanting to file a caveat to an experienced solicitor before proceeding. 

Even when a caveat is the appropriate course of action, one should only lodge a caveat when sufficient evidence supports its creation. 

When Should A Probate Caveat Be Filed?

You should file for probate caveat if you intend to challenge the legitimacy of a will. Reasonably, you can challenge a will if: 

  • There is a newer version of the will,
  • The document or will is not signed or witnessed properly,
  • There is evidence that suggests that the will is fraudulent 
  • The testator was forced to make the will or change the will under duress; or
  • There is evidence that the testator lacked testamentary capacity to have made the will.

It’s not uncommon or unusual for a challenge to be filed if the testator suffered from any mental illness/disorder or dementia, as a will is invalid if the testator lacked testamentary capacity. 

A caveat can also be lodged if there is reasonable doubt over the suitability of a particular administrator or executor. In this case, a probate caveat is filed to prevent said administrator or executor from being appointed as the personal representative of the deceased. 

In summary, the types of probate caveats in Queensland are:

  • A caveat against a grant for the estate, also known as a general caveat. This type of caveat would normally be filed where there are questions as to fraud or suspicious circumstances;
  • A caveat requiring proof in solemn form of any will of the deceased – this type of caveat is often filed where there is an issue in relation to the validity of the will because of capacity issues;
  • A caveat requiring any application for a grant to be referred to the court as constituted by a judge – this type of caveat could be filed where there is a question as to who should be applying for probate.

The summary of the potential situations is not exhaustive. The type of caveat to be filed requires careful consideration and will depend on many factors, including a caveators potential exposure to costs. Once you’ve filed for a caveat, it’s crucial that you start gathering information and hard evidence as well as sound legal advice in relation to your concerns about the will. Contact Us Directly at Queensland Probate for more information.

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