“Probate Caveats” – What are they and who do they protect?

Mention of the word: “caveat” is often accompanied by thoughts about restraints on the title to land. But, references to a: “caveat” in relation to deceased Estates is usually reference to what is commonly referred to as a: “Probate Caveat”, which does not necessarily involve restraint on land.

Probate Caveats prevents applications for, or the re-sealing of, a grant of Probate (Probate) or applications for a grant of Letters of Administration (Administration).

Probate Caveats must be lodged with the Supreme Court of Western Australia Probate Registry in the required form. There is no fee for lodging a Probate Caveat with the Supreme Court Probate Registry.

Examples of interests that can support a Probate Caveat are:

  • A beneficiary of a previous Will, in circumstances where the deceased lacked testamentary capacity;
  • A later Will of the deceased, which can be an “informal Will”;
  • Evidence that the deceased executed a Will because of undue influence or fraud;
  • A secured creditor of a beneficiary;
  • An undischarged bankrupt claiming an interest under a previous Will, the validity of which claim depends on the invalidity of the “current Will” to which the application for a grant of Probate relates; and
  • By an Executor under a previous Will.

A Probate Caveat can be lodged at any time after the deceased’s death, either before or after an application for a grant of Probate or Administration is made and operates as a stay of the application for grant of Probate or Administration.

A Probate Caveat can only be removed:

  • If it lapses and the Court has not made an order extending it;
  • By the Supreme Court on the successful application for it to be removed; or
  • If the caveator withdraws it.

If an application is made for the removal of a Probate Caveat, the person lodging the Probate Caveat must prove to the Supreme Court that there are circumstances warranting the Court’s investigation.

If an application for the removal of the Probate Caveat is unsuccessful, the person applying for the grant of Probate or Administration must commence contentious proceedings in the Supreme Court applying for the grant of Probate or Administration.

A Probate Caveat can be a useful tool to protect a person’s interest in a deceased Estate by preventing any adverse dealings with the deceased Estate contrary to those interests.

Our experienced Kott Gunning team are ready and able to assist with advice about all Wills and Estate matters including advising on:

  • Drafting Wills;
  • The effect of Wills or the absence of a Will;
  • Obligations of Executors and Administrators of deceased Estates;
  • The rights of a beneficiary of a deceased Estate or their rights if no provision is made for them in a Will or in an Administration (subject to their relationship with the deceased);
  • How the superannuation of a deceased must be considered and distributed. Did you know that superannuation does not form part of a deceased’s Estate, or, therefore, included in gifts made under a Will, unless the superannuation trustee pays the superannuation proceed to the deceased’s Estate?;
  • Challenging the distribution of a deceased’s superannuation; and
  • The facts relied on to support a Probate Caveat and the preparation and lodgement of a Probate Caveat.

For more information please contact:

Claire Hawke-Gundill – Partner – chawke-gundill@kottgunn.com.au 

Peter Mariotto – Special Counsel – pmariotto@kottgunn.com.au

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.