We have put together the most frequently asked questions from our clients regarding Probate Caveats.

What do probate caveats do?

If you want to make sure a grant of probate or other form of grant is not issued, then this should be done by filing a caveat. A caveat, if filed in time, will stop the intended executor or administrator from being allowed to obtain a grant and administer the estate of a deceased person, and notifies the caveator of this, allowing them the opportunity to oppose it.

A probate caveat is not the same as a property caveat.

What is a caveator?

A caveator is a person who files a caveat. Caveats are filed online with CourtSA.

How much does it cost to file a caveat?

The fee to file a caveat is $38.20 and is paid to the Court via a credit card. This is the Court’s filing fee, and does not include your lawyer’s fees for acting for you. You should discuss this with your lawyer.

There are also fees to withdraw the caveat, as well as attending to other actions that may be involved with caveats.

Why file a caveat?

A caveator can file a caveat for the following reasons:

  1. They believe the will is invalid;
  2. They don’t believe a certain person should obtain the grant or that the proposed applicant is unfit to take on the role.

A caveator should have an interest in the estate, as they cannot oppose a grant without it. This means they must be affected by the grant if not opposed.

A caveator should be very careful in deciding whether or not they should file a caveat or continue to oppose any grant. Our wills and estates lawyers can provide you with all of this information.

On what grounds could a will be invalid?

A will could be deemed invalid if:

  • the willmaker (“testator”) lacked testamentary capacity (ie. the mental capacity to make a will);
  • the testator did not know and approve of the contents of their will;
  • the making of the will involved undue influence, forgery or fraud; or
  • there are multiple wills or will-like documents and there is a conflict and/or uncertainty about which is the last will.

What does my lawyer need to file a caveat for me?

To lodge a caveat, your lawyer will need the following:

  1. Details of the deceased person, including their full name, aliases (if any), date of death, place of death, and last residential address;
  2. The caveator’s details (ie. your details if you are the person filing the caveat), including your full name and physical address;
  3. The death certificate. If you do not have a copy of the death certificate, you will need to provide some other form of proof of death and will need to make a promise that you will seek to obtain a copy of the death certificate in due course;
  4. The caveat filing fee. This fee is $38.20 and is paid to the Court via a credit card. We can pay this on our law firm credit card, if required, and charge it as a disbursement in your matter;
  5. Your true and current identity documents. These are very specific. See “Verification of Identity” below.

Your lawyer will also ask you some preliminary questions about why you wish to file a caveat, and about your relationship to the deceased person. These questions will help them determine whether a caveat may be warranted and whether you have legal standing, or the right or relevant interest or capacity, to file a caveat.

Verification of Identity

Your lawyer is also required to verify your identity in accordance with the Registrar-General’s verification of identity requirements. Therefore, please bring the following documents to your appointment. If you do not have any of these documents, please advise us before attending your appointment.

You will need your current and original:

  1. If you do not have a current passport, then a passport which has not been cancelled and was current within the last 2 years may be accepted.
  2. Australian driver’s licence or photo card;
  3. Full birth/citizenship/descent certificate;
  4. Medicare Card; and
  5. Change of name/marriage certificate (if your name has changed of differs on any of your documents).

If you do not live in South Australia, then you will need to have your identity verified with another lawyer or appropriate person. We can discuss this with you and provide you any relevant paperwork.

What happens after a caveat is filed?

Your lawyer will then need to obtain as much information as possible about your reasons for opposing the grant, and obtain any evidence or documents to support this.

They will also likely seek to obtain copies of any current and former wills, details of the deceased person’s assets and liabilities, and details of the proposed executors or administrators and beneficiaries of the estate.

What if the proposed executor or administrator wants to remove the caveat?

The person opposing the caveat can file what is called a “warning”. This is also filed online with CourtSA.

Firstly, that person’s lawyer (if they have one) will need to file a document to tell the Court they are acting for them and to gain access to the case.

Once they have gained access, they can then file the warning. The Court fee to do this is $38.20

What happens after a warning to a caveat is filed?

The caveator then has two options depending on their argument.

If the caveator has interest contrary to that of the person warning, then they may enter what is called an “appearance”.

An appearance does not mean you have to actually “appear” in person. Instead it is filed online on Court SA. The Court fee to do this is $66.50 and must be done prior to an affidavit being filed by the person warning.

Once an appearance is filed, the caveat remains in force until discontinued by order of the Court or the Registrar, or unless otherwise directed by the Registrar.

However, if the caveator does not have an interest contrary to that of the person warning, but wants to show a reason against a grant being issued to the person warning, then the caveator may issue and serve a summons for directions. The Court fee to do this is $322 and must be done prior to an affidavit being filed by the person warning.

Once a summons is filed, the caveat remains in force until the person, who is determined by the Court or Registrar, makes an application for the grant, or unless otherwise directed by the Registrar. 

How long does the caveator have to file an appearance to the warning?

The time allowed to enter an appearance is 14 days from the service of the warning, including the day of service.

When can the person warning file the affidavit?

The person warning can file their affidavit after 14 days of service of the warning, including the day of service.

The affidavit must set out the following:

  1. That the warning was properly served on the caveator;
  2. That no appearance has been entered by the caveator; and
  3. That the person warning did not receive a summons for directions.

The Registrar may then make an order that the caveat is to no longer apply.

Can a caveator withdraw a caveat?

A caveator can withdraw a caveat at any time before an appearance to a warning is filed.

The caveat will then no longer have any effect.

This is done online on CourtSA and the Court fee to do this $38.20.

If an appearance has been filed, however, and the caveator still wishes to withdraw the caveat, the caveator must file a summons, which essentially commences a Court proceeding, and seek an order from the Court. The Court fee to do this is $322. 

Do caveats expire?

A caveat will expire and cease to have effect after six months from the date it was issued, unless an appearance or summons has been filed.

It can renewed for additional periods of six months.

How soon should caveats be filed?

If a person intends to file a caveat, they should do so as possible after the death of the relevant deceased person.

Even though there are risks associated with filing a caveat, a person who has concerns about a will or the proposed executor or administrator should seek urgent legal advice. This should be done regardless of whether that person has any evidence to support their suspicions or concerns at that time.

Our lawyers will advise you as to what they believe is best for you in your particular circumstances.

Caveats can sometimes be used as a temporary measure to effectively “buy some time” to gather information and evidence to support the caveator’s beliefs. The time bought, however, will differ and depend on when the proposed executor or administrator finds out about the caveat, what they chose to do about it, and how quickly they decide to act.

Again, our lawyers will assess this for you and help you make the most appropriate decision.

What are the risks involved with filing a caveat?

Any person who lodges a caveat should understand that they have taken a serious legal step and be prepared to go before the Court to explain their reasons for filing a caveat.

The caveator will need evidence to support their reasons. For example, if they believe the will is invalid due to the deceased not having testamentary capacity, they should have obtained or be in the process of obtaining medical records, reports from doctors or specialists such as psychiatrists, neurologists or geriatricians, and witness statements.

If the caveator does not have a good reason for filing the caveat, it is likely the Court will order costs against them. This can mean the caveator will have to pay not only their own legal costs but the costs of other parties. This can add up to thousands of dollars.

Sometimes a person may wish to file a caveat because of concerns they have about the will or the proposed executor or administrator, but do not have any evidence at that time. As discussed above, a caveat may be a way of buying some time to gather this evidence, but this should be done with caution.

If a caveat is lodged and the caveator realises they do not have sufficient evidence to support their claim or changes their mind, then they should speak with their lawyer as soon as possible to consider having the caveat withdrawn.

Your lawyer can advise you about the strength of your claim and any evidence.

If you are concerned about a will or a proposed executor or administrator of a deceased estate, or are thinking about challenging a will, you should call one of our specialist lawyers on (08) 8213 1000.

Fees specified are accurate as at 1 July 2020.