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What is a Probate Caveat?

A probate caveat serves as a powerful tool for those who wish to temporarily block the granting of probate. It is typically used when someone has concerns about the validity of a will or the appointment of an executor. By lodging a probate caveat, individuals can pause the probate process, giving them time to investigate and potentially challenge the proceedings in court.

Court Case: Caveat Problems

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

• What Happened: The death of George Harris, a retired engineer from Sydney, triggered a family dispute when a questionable will surfaced, leaving the majority of his estate to a distant relative rather than his immediate family. Suspicious of the will’s authenticity, George’s children sought legal advice on how to prevent probate from being granted while they investigated further. Their solicitor recommended filing a probate caveat.

• Participant Behavior: A probate caveat is a legal notice filed with the Supreme Court of New South Wales to prevent the granting of probate for a will. It serves as a temporary block, giving the objector time to investigate any concerns regarding the will or the probate application. The caveat halts the probate process until the dispute is resolved or the caveat is withdrawn.

  In George’s case, his children believed the will did not reflect their father’s true intentions. By lodging a probate caveat, they were able to stop the probate process and secure time to gather evidence to support their challenge to the will’s validity.

• The Legal Process: To file a probate caveat, the objector must lodge a formal notice with the Supreme Court and pay a filing fee. A caveat remains in effect for six months and can be renewed for a further six months if necessary. During this time, the objector must either negotiate a resolution or commence court proceedings to contest the will.

  In this case, George’s children promptly filed the caveat after discovering the suspicious will. They gathered evidence, including statements from friends and relatives familiar with George’s intentions, and engaged a forensic expert to examine the will for signs of fraud or undue influence.

• Financial Consequences: Filing a probate caveat can lead to significant legal costs, especially where the estate is substantial or the dispute is complex. The process may delay the distribution of assets and create financial strain for those awaiting inheritance.

  In the Harris matter, the estate was worth approximately $2 million. The caveat led to a prolonged legal battle with considerable legal fees on both sides. Nonetheless, the caveat proved essential in preventing the estate from being distributed based on a potentially invalid will.

• Conclusion: The Supreme Court ultimately ruled in favour of George’s children, finding that sufficient evidence existed to invalidate the contested will. The estate was instead distributed under an earlier, uncontested will.

  The probate caveat played a critical role in halting the process, allowing time for proper investigation, and ensuring that George’s true intentions were upheld.

• Lessons Learned: This case underscores the importance of probate caveats as a legal safeguard for concerned parties. While they can be costly and may result in lengthy proceedings, caveats provide essential time to investigate issues of fraud, undue influence, or improper execution. Anyone considering this course of action should weigh the potential benefits against the legal and financial implications and seek expert advice early.