The issues concerning probate caveats in WA

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What is a probate caveat?

A probate caveat may be used when a person having an interest in an estate intends to oppose the application for a grant of probate or letters of administration.

There may be many reasons why a probate caveat is considered necessary such as in circumstances where the deceased's Will may be invalid because of a lack of testamentary capacity, undue influence, the Will was not made in compliance with the Wills Act 1970 or the Will was later revoked.

Who can lodge a probate caveat?

Under the Supreme Court’s rules, a “person having an interest in an estate” appears broad, however there are many cases which have defined the types of persons whom are entitled to lodge a probate caveat. In particular, the intention of a person to commence an inheritance claim under the Family Provision Act 1972 is not a caveatable interest.

A person who has an interest in an estate because of an entitlement under the Administration Act 1903 may in truth have no interest if a grant of probate is made for a Will.

It is important therefore to clearly state the grounds for the lodgment of the probate caveat and set out your interest in the deceased estate. If a probate caveat is refused for lodgment by the Court for non-compliance with the Court’s Rules, the lodging party can appeal the decision.

If you are not sure if you are able to lodge a probate caveat, please give us a call.

How long does a probate caveat remain in force?

A probate caveat will remain in force for a period of 6 months, however this period can be extended by the Supreme Court. The historical reason for the period of time was to allow a caveator time to commence legal proceedings to challenge the validity of a Will.

How can I remove a probate caveat?

If the caveator does not agree to voluntarily withdraw the probate caveat, you can wait until the end of the 6 month period (unless the period is extended), or commence contentious probate proceedings under the Rules of the Supreme Court 1971.As a result of the busy schedule of the Supreme Court, an application to remove a probate caveat may not be considered before the caveat lapses.

Legal costs

A party lodging a probate caveat may be liable to pay the legal costs of an opposing party if the probate caveat is removed by the Court or voluntarily removed. The Court’s discretion concerning legal costs is broad and you should obtain legal advice before lodging a probate caveat with the Supreme Court of Western Australia.

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