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June 16, 2015
I Do Not Believe the Will is Valid. How May I Stop Probate?

By Arron Kitson

In probate proceedings, you may be able to lodge a caveat on probate, administration or resealing at the Supreme Court of Western Australia (the ‘Court’).

Once a caveat on probate is successfully lodged, the caveat will prevent an intending executor or administrator from obtaining a Grant of Probate or Letters of Administration and the probate proceedings cannot recommence except on notice to you.

A caveat must be lodged with the Court before the Court has issued a Grant of Probate or Letters of Administration.

Therefore, a caveat may be lodged with the Court either before an application for probate, administration or resealing has been filed or after such application has been filed but before the Court have issued a Grant of Probate or Letters of Administration.

Generally, it is difficult to challenge the authority of an executor or administrator after the Court has issued a Grant of Probate or Letters of Administration.

So, Can I Lodge a Caveat?

You may lodge a caveat on probate if you are a person with an interest in a deceased’s estate in which an application is being made for a grant or the sealing of a grant of probate or letters of administration and you intend to oppose such application.

Your interest in the deceased’s estate must be a real one that will be affected by the grant and not merely speculative. Your caveat must have a proper legal basis otherwise the Court may order that you pay the other party’s costs in dealing with your caveat.

A caveat should not be lodged if your contention against the deceased’s estate is that you want to claim a greater share in distribution of the deceased’s estate proceeds.

What Happens Once My Caveat is Successfully Lodged?

If you successfully lodge a caveat, it will expire after six (6) months but can be extended upon further application to the Court.

An intending executor or administrator may challenge your caveat before it has expired.

The question as to the validity of the Will you are opposing must be determined by the Court.

The way in which the Court’s determinative process will transpire may turn on a myriad of factors depending on the circumstances at play.

If you require any advice or assistance in relation to caveating probate proceedings please contact Aaron Kitson of LBH on akitson@lbandh.com.au.