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Did You Know That You Can Place a Caveat Over a Grant of Probate?

 

Most people associate the word caveat with restraints over land and certificates of title.  When you use that word in relation to a deceased estate it actually relates to the Will of a deceased person.  It is referred to as caveat over Probate.

A caveat over Probate prevents applications for, or the re-sealing of, a grant of Probate (‘Probate’) or applications for a grant of Letters of Administration (‘Administration’).  A caveat over Probate is a very useful tool to protect your interests in a deceased estate by preventing any dealing with the deceased estate until any dispute can be resolved. In short, a caveat prevents a grant of Probate being made.

Some of the reasons for the placing of a caveat over Probate include:

  • A beneficiary contesting a Will on the basis that the Will maker lacked capacity when signing the Will;
  • The existence of more than one Will, where one of the Wills may be an ‘informal Will’, being a Will that does not comply with the requirements of the Wills Act;
  • The existence of evidence that the Will was signed under duress, undue influence or even fraud;
  • A secured creditor of a beneficiary may wish to ensure he, she or it will be paid once the beneficiary receives his or her legacy;
  • An executor who was named in a previous Will.

In South Australia, a caveat over Probate must be lodged electronically on the CourtSA portal which incurs a nominal filing fee and can be lodged any time after the death of the deceased, either before or after an application for a grant of Probate or Administration has been lodged.  It must be accompanied with a copy of the Death Certificate and will remain in place for 6 months.  At the expiration of the 6 months, the caveator can ask the Court to extend the caveat for a further 6 months and so on until the issues have been resolved. If no extension is sought, the caveat will lapse.

A caveat over Probate can be removed in a number of different ways:

  • If the caveat has lapsed and an extension of time has not been granted;
  • By successful application to the Supreme Court to make orders to have it removed; or
  • If the caveator withdraws it.

The lodgement of a caveat over Probate usually results in the commencement od negotiations to resolve the dispute leading to the caveat being filed.  An application to the Supreme Court to make orders to have the caveat removed requires evidence to prove there are circumstances warranting the Court’s investigation.

For advice about protecting your interests in a deceased estate, contact one of our experienced estate solicitors at Bambrick Legal via: