caveats on probate
Wills, Estates & Succession Planning 17 May 2023

Halting Estate Administration – what is a caveat on probate and when are they used?

What is a caveat on probate?

A caveat on probate is a warning placed on the Court file that prevents the Court from granting probate or administration until the caveators (the person who lodges the caveat) concerns are addressed. In Victoria a caveat on probate is lodged with the Supreme Court of Victoria and is subject to a filing fee.

The caveat will be in place until it expires, which is usually upon the expiration of 6 months from the date it is filed. Prior to its expiry, caveators can apply to the Court for an extension of the caveat. Additionally, where the Court gives a caveator notice of an application for the grant of probate the existing caveat will expire after 30 days, unless the caveator files a statement of their reasons for objecting to the grant of probate.

A new caveat on probate over the same will may be lodged after the earlier caveat expires. This may provide prospective caveators time to gather helpful information from family, friends or professionals.  However, during the time between the caveats (where there is no caveat in place) the Court may process an application for the grant of probate.

You should seek legal advice about whether you have a caveatable interest before lodging a caveat on probate in order to avoid the application from being dismissed or being subject to adverse cost orders with financial penalties.

Why would a caveat on Probate be filed? Questions about the validity of a deceased’s will

The executor or legal personal representative of a deceased estate may need to obtain a grant of probate or grant of letters of administration from the Supreme Court of Victoria (‘the Court’). A grant of probate essentially confirms that a will is valid and permits the executor to distribute the deceased person’s estate in accordance with their wishes contained in the will.

However, if you have concerns that a will may not be valid you may seek to prevent that will from being validated by the Court, pending further investigation.  One way to do this is by lodging a caveat on probate. Where a caveat is lodged, the Court is prevented from issuing a grant of representation until such time as the grounds for the said caveat are investigated.

Can I lodge a caveat on probate?

In Victoria, section 58 of the Administration and Probate Act 1958 (Vic) allows anyone to file a caveat against a grant of probate application. However, you must have ‘standing’ to file a caveat against a grant of probate. Understanding the ‘standing’ requirement is important before deciding to engage in the probate caveat process. For instance, one of the forms the Court requires to be filed, called the ‘Caveator’s Grounds of Objection’ form, requires prospective caveators to state why they have standing.

The Court considers a person to have ‘standing’ where they demonstrate a sufficient interest in the deceased’s estate. ‘Sufficient interest’ is found where the person demonstrates how their rights would be affected if the Court ordered a grant of probate. Probate cases in the Supreme Court of Victoria have generally found that beneficiaries under a will, have sufficient interest. Additionally, beneficiaries under intestacy (that is those who would stand to inherit from the estate if the will being contested is found to be invalid) may have sufficient interest.

In Gardiner v Hughes [2017] VSCA 167 the caveators were beneficiaries under a previous will. They Court found that, because their rights as beneficiaries would have been affected or lost if the latest will was found to be valid, they had sufficient interest to lodge a caveat on probate.

In Re Aitken [2018] VSC 817 a caveat on probate was lodged for a trustee in bankruptcy and the grand daughter of the deceased who had concerns that an executor who was made bankrupt was not a fit and proper person to administer the estate and carry out their role or duties as an executor.

In Re Warner [2019] VSC 656 a caveat on probate was lodged for a deceased’s son who alleged that two of the three named executors in a will had a conflict of interest with their benefits and properly distributing the estate.

In Re Munro [2018] VSC 747 a caveat on probate was lodged where the application was supported by grounds that the at the time of writing the will the now deceased lacked testamentary capacity to properly know and approve the terms of the will.

When should I apply for a caveat on probate?

A caveat on probate should be filed before or after the Court receives an application for a grant of probate over the will. This way a caveat on probate can be issued before the Court orders a grant of probate over the will. If the Court has already ordered a grant of probate it is possible to apply to the Court to revoke the grant of probate however it is a more challenging task.

It is important to note that the Supreme Court of Victoria typically processes a grant of probate application within a few days. As such, a prospective caveator should apply for a caveat on probate as soon as possible to avoid losing protection over their interest in the estate.

What do I do if I want a caveat on probate that I did not lodge removed?

You can apply to the court to have a caveat on probate removed. Generally, the Court may set aside the caveat on probate if it can be demonstrated that there is no supported legal basis that the will is invalid. For instance, you can demonstrate to the Court that the caveator does not have sufficient interest in the estate. 

Next steps

For more information about deceased estate caveats, obtaining probate or letters of administration or deceased estate disputes in general,  please contact our specialist Wills, Estates & Succession Planning Team for advice.

Kirsty Brealey.
Kirsty Brealey Special Counsel Wills, Estates & Succession Planning View profile
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