What is a caveat?
A lady died, leaving a will made eleven years prior, naming her friend’s daughter as her executor and beneficiary of her estate.[i] Nine years before that will, she had made an earlier will in which she named her niece as her executor and beneficiary.
The friend’s daughter sought a grant of probate of the last will, however, the niece had filed a caveat in the Supreme Court to prevent probate from being granted.
The niece said that probate of the last will should not be granted on the ground that circumstances existed that gave rise to a suspicion that the lady did not know and approve the contents of her last will.
The niece argued that the following circumstances were relevant in giving rise to the suspicion:
- the lady executed her will at a time that she was distressed as a result of the death of her sister-in-law and the terminal illness of her brother who was in hospital, and therefore had “overwhelming angst regarding death and illness”;[ii]
- the lady had an argument with the niece four days before she made the last will;
- no solicitor witnessed the signature of the lady’s last will;
- her will was executed urgently with no reason other than her “vulnerability and fragility given the recent death of her sister-in-law and the looming death of her brother”;[iii]
- the lady’s signature was not on the first page of the will; only the second;
- the last will left her entire estate to the friend’s daughter whereas the previous will left it to the niece, and this was done without “explanation or forewarning”;[iv]
- notes of the law clerk’s attendance on the lady suggested she did not properly understand the contents and effect of her last will;
For a person to file a caveat they must first have standing (ie. must be affected by or an interested party to the matter) and then must have’ grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds of objection relied on by him or her’.[v] In other words, the person filing the caveat must be able to give enough factual details, which on the face of it, show grounds of the objection to the grant.
If a deceased person did not know and approve the contents of his or her will, then that will cannot be valid. The niece sought to argue that the lady’s will could not be valid for this reason.
The law says that where there are no suspicious circumstances to suggest the will may not have been fully known or approved by the willmaker (ie. “the testator”), proof of the testator’s capacity and of the will being properly executed creates an assumption that the testator knew and approved the contents of the will.[vi]
However, if a suspicious circumstance exists, then that assumption does not arise. It is then the person who is seeking to prove the will or obtain probate who must remove the suspicion and prove that the testator knew and approved of the contents of the will.[vii]
Meagher JA in Tobin v Ezekiel said “[w]hat is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case”[viii].
In this case, the Court found as follows:
- The changes to the lady’s will were a result of her falling out with the niece and she wanted to make those changes as soon as possible after the argument;
- This change was made with explanation. The clerk’s attendance notes stated “Niece never been financially dependent want to remove her from will due to family upset”;[ix]
- The lady did not need to ‘forewarn’ the niece that she intended to change her will.
- The lady’s explanation for changing her will did not raise suspicion that she “did not fully or properly comprehend the significance of her actions or the effect of the will’;[x]
- The fact that no lawyer was present when the lady executed her will or that no solicitor witnessed her signature was not a cause for suspicion;
- The will was executed in accordance with law;
- The lady’s wishes in her will were clear and the will was simple in form;
- The clerk’s attendance notes record discussions about various aspects of the will suggesting the lady was aware of and understood it;
- The fact that the lady’s sister-in-law had died and that her brother was very ill did not appear to be a suspicious circumstance. McMillan J said “[i]f it is relevant at all, it provides an understandable reason for the deceased ensuring her testamentary intentions were updated and in order.” [xi]
The Court therefore held that the niece’s grounds of objecting that probate be granted of the lady’s last will did not provide a sufficient factual basis to establish a prima facie case that circumstances existed which gave rise to a suspicion the lady did not know and approve the contents of her last will.
She was unable to give enough factual details, which on the face of it, showed grounds of the objection to the grant, being that the lady did not know and approve the contents of her last will. The caveat was struck out.
[i] The case discussed is Re Kohout; Rubinstein v D’Aquino  VSC 686.
[ii] Re Kohout; Rubinstein v D’Aquino  VSC 686, .
[ix] Re Kohout; Rubinstein v D’Aquino  VSC 686, .
[x] Ibid .
[xi] Ibid .