If you have an interest in the estate of a deceased person, and:
- wish to challenge the validity of a Will, for example:
- as it is informal (in that it doesn’t comply with the usual requirements for execution); or
- because you genuinely believe it to be a forgery;
- have serious doubts as to the testamentary capacity of the person that made the Will at the time it was made;
- have evidence of a later document purporting to be the deceased person’s Will; or perhaps
- claim that a Will was executed under undue influence or pressure,
then there is a process by which you can put the Court and the person propounding that Will in an Application for Probate or Letters of Administration with the Will Annexed on notice.
That process is basically, before the Court makes a grant, to:
- formally file with the Court; and
- serve on the known or potential applicant
a document called a “Caveat on Probate“.
The effect of a Caveat on Probate is that the Court will not make a grant of Probate in the estate without notice to the person who lodged it.
An executor that wants to proceed with an application for a grant of Probate can apply to the Court for a Caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to the validity of the Will. In such contested proceedings for probate, they are to be commenced by Statement of Claim seeking the grant in solemn form and the other parties may file Cross Claims as appropriate.
Obviously, there can be costs consequences that flow from improperly taking this step so advice ought to be taken before doing so.
Note that the Caveat on Probate is not the appropriate step to take if you do not challenge the validity of the Will but want to seek a family provision order.
FURTHER INFORMATION
For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
