Probate Caveat

A grant of probate is a court order issued by the NSW Supreme Court to confirm the validity of a deceased person’s Will and authorize the appointed Executor to distribute the estate as outlined in the Will.

A grant of probate in common form indicates that there has been no contest to the validity of the Will and no suspicious circumstances that would prevent the Court from confirming the Will’s validity. On the other hand, a grant in solemn form following a challenge signifies that the Will, after careful consideration, has been affirmed as valid by the Court.

A probate caveat is a legal document filed in Court to contest the validity of a Will in cases where there is suspicion of forgery or doubts about the Will’s authenticity; it is not for disputes over the content of a will or family provision applications.

A caveat is a notice to the Registrar or an officer of the Court not to let anything be done concerning a Will without notice to the person who lodges the caveat –In Re Emery 1923 P 184.

Filing a probate caveat under inappropriate circumstances can lead to the Court ordering the Caveator to cover the costs incurred by the other party. The potential consequences of such actions should make the audience feel cautious and aware, underlining the need for careful consideration before filing a caveat.

Inheritance disputes often revolve around the validity of a deceased person’s Will. In such instances, a probate caveat may play a significant role.

If a person who wishes to challenge the making of a grant fails to lodge a caveat, the Court may proceed to make a grant. A caveat cannot be entered after a grant has been made—in the Will of Clarke (1922) 22 SR (NSW) 228.

In New South Wales, there are three kinds of probate caveats.

A general form of caveat is usually the appropriate type. It permits the Caveator to contest a Will due to lack of testamentary capacity, intention, fraud, or undue influence. The Caveator’s ‘stake in the estate’ is a crucial factor, as it means they must have a direct interest in the assets or the distribution of the estate, underscoring the gravity of their role in the probate process.

A caveat in Solemn Form allows a challenge based on the failure to execute the documents as required by statute law. The Court will examine the evidence regarding the validity of the Will before declaring it valid. Again, to apply, it is necessary to demonstrate an ‘interest in the estate.’

An Informal Testamentary Document caveat allows a challenge to a grant of probate involving an informal testamentary document. The person challenging it must show they are an ‘affected person concerning the estate’.

Who can apply for a probate caveat when challenging a Will?

The Supreme Court Rules specify that only a person with a legal ‘interest in the estate’ or a ‘person affected by the estate’ can lodge a probate caveat, including a potential beneficiary of the Will and anyone named in a previous Will.

The right to apply for a probate caveat does not include creditors, anyone intending to make a family provision claim, or anyone with a Court Order, such as a Family Court Order, relating to the deceased. Similarly, if there is insufficient evidence of a material interest in the Court proceedings’ outcome, the Court can remove the caveat without considering further evidence.

When is a probate caveat no longer operative?

A probate caveat will cease in the following circumstances:
unless extended, the caveat will expire after six months;
the Caveator withdraws it;

• proceedings have commenced, and the Caveator is a defendant;
• Where the Caveator is unable to demonstrate an ‘interest in the estate’ or a reasonable prospect of being able to do so;
• Where there is any doubt as to whether the grant ought to be made or
• The Court ordered the Caveator to commence proceedings, and the time limit expired.

If the challenge is successful, the Court can set aside the invalid Will and distribute the estate according to the next most recent valid Will, or according to the rules of intestacy. This potential redistribution of assets should illustrate the potential gravity of the situation, and highlight the importance of a well-founded challenge.

Once filed, the executors or administrators cannot manage the estate until the Court verifies that the proposed Will is the deceased’s last valid. The Court’s verification process involves thoroughly examining the evidence and may prolong the proceedings’ duration and nature depending on the probate caveat’s grounds.

The matter

In Re Estate Capelin (Deceased) (2022) 107 NSWLR 461, the NSW Supreme Court examined the use of caveats in probate cases. The Executor requested lifting a ‘general caveat’. Although the Court acknowledged the Caveator’s right to contest, the Executor argued that there was insufficient evidence to establish a preliminary case against a grant of probate.

Re Estate Capelin is critical as it clarifies the meaning of “prima facie” in the probate context. Previously, some cases had determined that a caveator could only maintain a caveat if they presented enough evidence to the Court to establish a preliminary case against probate. However, Re Estate Capelin expressed the opinion that “prima facie” referenced the matters outlined in the Court probate rules. A caveat:

(a) requires proof of a Will in solemn form – Pt 78 r68:
(b) raises a general objection under Pt 78 r66; and
(c) is min respect of an informal testamentary document – Pt 78r67

These rules require demonstrating that there is doubt regarding whether a grant should be made, indicating that the burden of proof is lighter than previously interpreted.

The testator, who had been married twice, passed away in July 2017. His first marriage ended in divorce, and his second wife, Marie, died in December 2015. The testator was survived by three children from his first marriage (Lisa, Karyn, and Mark) and two from his second marriage (adopted son Stephen and biological son Stuart).

2001 Will

The testator made a will in 2001, which left his estate to Marie unless she predeceased him. Stuart would be the sole beneficiary and Executor. After Marie’s death, the testator lived in the Dunamis Court property, where his daughter Lisa also resided. Stuart and his wife lived nearby.

A 2016 deed of arrangement between the testator, Stuart, and Stuart’s wife outlined that the testator would transfer the Dunamis Court property to Stuart and his wife, who, following its sale, build a granny flat on the Solway Crescent property with the sale proceeds. However, the purchase of Solway Crescent fell through, so the testator moved to the Riviera Court property. This deed of arrangement could have significant implications on the distribution of the testator’s estate.

2017 Will

In 2017, due to declining health, Stuart and his wife placed the testator in respite care, which he resented. The testator expressed to his daughter Karyn that he wished to change his Will, and with her assistance, a new Will was made on March 2, 2017, revoking the 2001 will and naming Mark as Executor. The latest Will left the estate to Lisa, Karyn, and Mark, excluding Stuart and his family.

Stuart sought probate for the 2001 Will in April 2018, but Mark filed a caveat and a counterclaim promoting the 2017 Will, alleging it was the actual last Will. The Court had to determine whether the testator executed the second Will had testamentary capacity. The trial judge found that the testator lacked testamentary capacity when executing the second Will.

The decision

The Court of Appeal questioned whether the trial judge correctly assessed testamentary capacity, focusing on the testator’s cognitive impairment rather than his ability to understand the moral claims of potential beneficiaries. The Court of Appeal confirmed the trial judge’s decision that the testator lacked testamentary capacity when making the second Will following the test for testamentary capacity from Banks v Goodfellow (1870).