A probate caveat is a legal notice that prevents the Supreme Court from issuing a probate grant and temporarily halts an executor from managing the estate. This allows the caveator time to seek legal advice and gather evidence. If the caveator lacks sufficient interest, the personal representative can request the court to lift the caveat. The caveat lasts for six months unless renewed or withdrawn. It is the initial step in contesting a will (i.e., declaring it void).
Additionally, it is essential for safeguarding beneficiary rights in an estate. Submitting a caveat can permit the caveator (who files it) to seek legal advice and examine the details surrounding the legitimacy of a Will. Furthermore, it can allow the caveator to access essential documents that might aid in assessing a Will’s authenticity under scrutiny.
In Victoria, sections 58 and 82 of the Administration and Probate Act 1958 (Vic) permit anyone to file a caveat against a probate request. However, since a probate caveat is the first step in disputing a will, only those authorised to challenge it should submit a caveat. A caveator must possess the right to contest a Will. Otherwise, the caveat will be rejected, the Will granted probate, and the caveator may face an order for adverse costs.
McLeish JA defined the requirements for proving standing in Victoria in Gardiner v Hughes [2017] VSCA 167, confirming that all civil actions must be suitable regarding the value or issue in contention under the Civil Procedure Act 2010; thus, a person should not file a caveat to safeguard a trivial or insignificant interest in an estate.
Background
Mr. Lior Schmaman (the deceased) passed away on June 3, 2022, at his home in Carrum Downs at 41. He was single and had no children. Although his death certificate indicates that ischaemic heart disease was a condition, there was mixed drug toxicity from oxycodone, codeine, benzodiazepines, citalopram, and mirtazapine, which could suggest an overdose. A Coronial inquiry does not specify whether the overdose was accidental or intentional.
Medical and Personal History
Following a traffic accident in 2015, the deceased had been suffering from significant physical and mental health issues, requiring surgical treatment for injuries to his left knee and foot, leading to the development of complex regional pain syndrome, along with other chronic conditions such as anxiety, depression, coronary artery disease, autism spectrum disorder, obsessive-compulsive disorder, and post-traumatic stress disorder reportedly stemming from the 2015 accident, impacted his cognitive abilities, mood, and overall mental well-being.
Will and Estate Details
Lehr v Matters [2024] VSC 640 (23 October 2024) concerns a disagreement over the deceased’s Will, dated July 7, 2021 (“2021 Will”), executed in the presence of his friend Warren Lehr and cousin Andrew Lyons, named executors. Although the specifics of its preparation remain vague, a solicitor drafted the 2021 Will and met the formalities of the Wills Act 1997 (Vic); despite some minor typographical errors, the 2021 Will provides for the distribution of the deceased’s estate, including his bank assets (amounting to $203,043.20), a claim against the Transport Accident Commission (TAC) related to the 2015 accident and real estate valued at $730,000.
Under the 2021 Will, the deceased’s cousin, Mr Lyons, is entitled to the funds in the deceased’s bank accounts, totalling $203,043.20, the returns from the deceased’s TAC claim, and specific furniture and musical instruments and equipment. The remaining estate would be shared equally by the executors.
Notably, the 2021 Will is markedly different from the deceased’s 2020 Will, which appointed the caveator (the deceased’s stepbrother, Mr Benjamin Matters) as a substitute executor and gave him half of the estate’s residue. Additionally, the 2020 Will include specific bequests to the deceased’s mother, Ms. Felicia Schmaman.
Objection and Dispute
The caveator submitted an objection on February 1, 2024, contesting the 2021 Will and claiming that the deceased lacked testamentary capacity when he executed the 2021 Will. Specifically, the caveator highlighted:
- The unaccounted omission of close family members from the 2021 Will,
- deceased’s considerable physical and mental health challenges and
- Behaviour around the duration the testator signed the 2021 Will.
The executors have filed a strike-out application to dismiss the caveat, asserting that the caveator’s claims do not have enough substance for further investigation. However, based on current legal standards, the caveator must establish a prima facie case for the Court to further examine the deceased’s capacity.
Legal Framework
Gardiner v Hughes (No 2) [2019] VSCA 198 examined the appropriate legal principles concerning establishing a ‘prima facie case.’
Douglas Gardiner passed away on 26 June 2015, leaving a significant estate. He was unmarried and childless. The applicants, his nephews and niece (children of his late brother Robert), sought to appeal a decision denying their request to revoke the probate of Mr Gardiner’s final will, as they had not demonstrated a prima facie case.
“A testator who leaves a will that is rational on its face and which has been duly executed enjoys the presumption of validity about the will. This presumption may be rebutted where there is doubt about a testator’s capacity at or around the time they executed the will. If such a suspicion is sufficiently raised, the onus shifts to the propounder of the will to prove that the will was validly made.”
[2024] VSC 640 at 18
It is well established that the test for testamentary capacity requires a proposed testator to comprehend the nature and effect of a will, understand the extent of the property of which the will disposes, and to be able to comprehend and appreciate the claims to which they ought to give effect.”
The caveator’s challenges focus on the legitimacy of the deceased’s testamentary capacity in 2021, particularly in light of his mental health conditions and the exclusion of certain relatives from his will. Before granting probate, the court must decide whether a sufficient basis exists to investigate these issues further.
Executors submissions
In this instance, the executors presented detailed reasoning supporting the validity of the deceased’s 2021 will, mainly emphasising the presumption of testamentary capacity when a will appears rational and meets the formalities of the Wills Act 1997 (Vic) submitting that the caveator was initially obligated to provide evidence raising legitimate doubt concerning the deceased’s testamentary capacity, thus requiring further investigation. The executors maintained that the 2021 Will, prepared and witnessed by a solicitor, suggested an inference of the testator’s capacity, as a solicitor would not act without being convinced of the testator’s mental fitness.
The executors believe that the deceased’s decisions in the 2021 Will reflect a mere change of mind rather than incapacity. They also pointed out that neither the deceased’s mother nor the caveator had a robust claim on the estate as “natural objects of the deceased’s bounty.”
The executors analysed three areas raised by the caveator—relationships, medical conditions and treatment, and conduct—asserting that none provided a sufficient basis to contest testamentary capacity:
The executors opposed a further investigation into the deceased’s testamentary capacity regarding the execution of a 2021 Will, submitting
- the deceased’s similar mental capacity between the 2020 and 2021 Wills,
- the absence of medical evidence linking ketamine infusions to impaired capacity,
- a weak relationship with the deceased’s mother, and a lack of evidence supporting claims of close relationships and
- that the changes in the 2021 Will were reasonable and
- the deceased exhibited clear communication and self-awareness.
The decision
However, Daly AsJ found sufficient grounds to proceed with further investigation, acknowledging evidence of the potential for the deceased’s declining health and psychological distress concerns over the impact of medications and the availability of additional medical records that might clarify the deceased’s cognitive state.
Due to the deceased’s recent history, the caveator may challenge the Will’s legitimacy. Consequently, Daly AsJ denied the executors’ application to strike out the caveat, allowing for a comprehensive evaluation of the deceased’s testamentary capacity.
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