Lodging a Caveat on Probate in NSW: When and Why to Do It
When someone applies for a Grant of Probate in New South Wales, the Supreme Court process is designed to confirm who has authority to deal with the estate. If you suspect the Will being put forward is not valid, lodging a caveat can stop a grant being issued until your concerns are properly addressed.
What is a probate caveat?
A caveat is a formal notice filed with the Supreme Court of NSW that puts the Executor’s or Administrator’s application for a grant on pause until your matter is heard.
When should you lodge a caveat?
You should consider lodging a caveat as early as possible if you have a genuine basis to challenge the Will to stop a grant being made to the person applying.
Common situations include where you have evidence that:
- the deceased lacked testamentary capacity at the time the Will was made
- the Will was made under undue influence, pressure, or coercion
- fraud or forgery is involved
- there is a later Will, a different original Will, or uncertainty about which document is the last valid Will
- the Will does not reflect the deceased’s true intentions due to suspicious circumstances
Why lodge a caveat?
A caveat may be appropriate because it:
- prevents Probate being granted while the validity issue is raised
- creates time and leverage to request information (such as the Will file, medical records, and circumstances of execution)
- forces the applicant to respond before they obtain authority to administer the estate
- helps protect estate assets from being distributed before the dispute is resolved
Importantly, a caveat is not a substitute for a full Will challenge. It is a protective step designed to pause the process while the parties address the dispute.
What happens after a caveat is lodged?
Once a caveat is in place, the executor or the person applying for Probate generally cannot proceed to a grant in the usual way. The matter may then move into a contested process, often involving evidence about:
- how the Will was prepared and signed
- the deceased’s capacity at the relevant time
- whether there were suspicious circumstances affecting the Will’s validity
- Act promptly. Timing matters. Probate is granted before a caveat is lodged, your options may change.
- Be clear about your grounds. A caveat should be lodged only where there is a genuine dispute about validity, not merely dissatisfaction with the Will’s terms.
- Get legal advice early. Will validity disputes can require careful evidence gathering and strategic decisions.
