How to protect your rights if a Will may be invalid
Being involved in a deceased estate can sometimes be a stressful and unsettling experience for both beneficiaries and executors. These stresses are often exacerbated if there are concerns about the circumstances in which a will was made, the capacity of the person who has made a will or if a ‘surprise’ will suddenly appears.
One of the first formal tasks for an executor or administrator in most estates is to apply for a Grant of Probate of a Will or Letters of Administration (where there is no will) from the Court. A grant from the Court is the executor or administrator’s authority to manage the estate and deal with the assets. Individuals with concerns about the validity of a deceased persons will are often concerned about what to do to protect their interest in the estate.
Luckily there are options to assist individuals faced with this situation. One such mechanism is a probate caveat.
What is a probate caveat?
A probate caveat is a document filed within the Probate Registry of the Supreme Court of Western Australia that, if accepted by the Court, prevents the issue of a Grant of Probate of a Will or Letters of Administration in a deceased estate.
How can it help?
Caveats are a useful mechanism for preserving the right of either an executor or administrator or a beneficiary to obtain a grant from the Court in an estate where there are serious concerns about the validity of a will, the existence of other wills and/or the actions of other parties.
A typical example of where a caveat might be useful is where the executor of a will suspects that a later will was made in circumstances where the deceased person did not have testamentary capacity or where there are allegations the deceased person was unduly influenced by others.
Another example of the use for a caveat is where there is an intestate estate (no will), and a proposed administrator of the estate has made it clear that they will not distribute the estate correctly according to the terms of the Administration Act 1903 (WA) (“the Act”). In this case, another person entitled in the estate can lodge a caveat to prevent the issue of a grant of Letters of Administration to the party who has threatened not to follow the terms of the Act.
You should consider lodging a caveat if you are an executor or potential administrator of a deceased estate or a beneficiary who may be prejudiced by the issue of a grant and any of the above circumstances applies.
Is it like a land caveat?
A probate caveat works a bit like a land title caveat that is commonly used to secure an interest in property. A probate caveat secures the interest of a person seeking to obtain a grant of probate or administration in an estate by preventing the issue of a grant to any other person, while the caveat is in force.
The law underpinning probate caveats in WA is found in the Act and the Non-Contentious Probate Rules 1967 (WA) (“the Rules”).
Who can lodge a caveat?
A caveat can be filed by any person with an interest in an estate who is intending to oppose an application for representation in the estate by another person. The person lodging the caveat is known as the ‘caveator’. A caveator must state in detail their interest in the estate and the interest must be prejudiced by the issuing of the grant to the applicant.
Caveats should not be lodged by persons who merely seek to challenge their share of an estate under a will or on intestacy. This includes claims for further provision from an estate under the under the Family Provision Act 1972 (WA).
The Caveator must have a real interest in and be affected by the issue of a grant to another person.
How is a caveat lodged?
Once it is clear that a caveator has an appropriate interest in the estate to lodge a caveat, the correct document must be filed with the Court. The Rules set out a format for the procedure of filing a caveat and this should be followed.
The caveat is signed by the person or by their lawyer and is then filed in the Probate Registry of the Supreme Court.
There is no filing fee payable to the Court for filing a caveat.
How long does the caveat last?
If a caveat is in force, any applicant for a grant of probate or administration in the estate will receive a requisition to their application and it will not be processed by the Court until the caveat lapses or is otherwise removed. The caveator will also receive notice of the application.
There are specific rules around Probate Caveats lapsing and being removed.
Probate caveats are an extremely useful mechanism to protect the interests of an applicant for a grant or a beneficiary in circumstances where there are concerns about the validity of a will, or fears that a will was made in circumstances of undue influence or duress.
Professional advice should be sought before a caveat is lodged as there can be costs consequences for an unprepared caveator and the lodging of a caveat can sometimes inflame a delicate family situation and itself be the cause of further dispute.
If any of the matters raised in this article raise concerns for you, please contact our dedicated deceased estate team on 9375 3411.
About the author: After completing a double degree Bachelor of Arts (Politics and International Relations) and a Bachelor of Law, Matthew was admitted into the Supreme Court of Western Australia in 2016.