Probate Caveats

Caveats

Functions and Purposes of Caveats

A caveat is a mechanism used to stay of proceedings for those seeking probate without first giving notice.[1] If a caveat has not been accepted by the registry the court is not obligated to prevent a grant issuing to an applicant.[2] A caveat cannot be accepted after a grant has been made.[3] Filing or renewing a caveat without proper cause can be seen as an abuse of process.[4] The court may issue a grant despite a caveat or a writ if they think that the caveat or writ is an abuse of process.[5]

The nature of a caveat is summarised in Tristram & Coote’s Probate

Practice (27th ed) at 507 as follows:

“Definition

A caveat is a notice in writing lodged in the Principal Registry of the Family Division, or in any district probate registry, by a person wishing to show cause against the sealing of a grant, that no grant is to be sealed in the estate of the deceased named therein without notice to the person who has entered the caveat (NCPR 44) … No grant, other than a grant ad colligenda bona (see pp 386 ff, ante and pp 554 ff, post) or a grant pending suit (see pp 384 ff, ante), can be sealed if the registrar has knowledge of an effective caveat, but a caveat is not effective to prevent the sealing of a grant on the day on which it is entered (r 44 (1)). The person by whom, or on whose behalf, the caveat is entered, is called the caveator.

Purpose

The following are some of the purposes for which a caveat may be entered:

(1)     to give time to the caveator to make enquiries and to obtain such information as may  enable him to determine whether or not there are grounds for his opposing the grant;

(2)     to give any person interested in the estate an opportunity of bringing any question arising in respect of the grant before the court on summons;

(3)     as a step preliminary to a probate action, or to the issuing of a citation.”

 Relevant Legislation

Other Jurisdictions: Types of caveat

“In some jurisdictions the caveator must make an election as to the nature and extent of the caveat.[1]

There are three types of caveat:

  • Caveat requiring proof in solemn form

The lodging of this caveat will require the will to be proved in solemn form and entitle the caveator to cross-examine witnesses called for that purpose, but only as to the question of due execution: see Azzopardi v Smart, and Estate of Dampf late of North Narrabeen v Dampf [2010] NSWSC 619; BC 201003976. The caveator will not be allowed to raise issues such as testamentary capacity, undue influence or fraud.

  • General caveat
  • Caveat concerning an informal testamentary instrument[2]

There is no such distinction in WA and all caveats are general in nature.

 Standing: The “sufficient interest,” or “relevant interest,” test

The caveator needs to show that he or she has a relevant or sufficient interest in the estate.[3] This must be expressed in the caveat.

“The rules are designed to allow what are called interest suits being determined in advance. It is a serious matter where a person with no locus standi is allowed to contest the administration of the estate because the results of such litigation may be utterly futile and it may be necessary for different parties to fight over much of the same ground.”[4]

A caveator needs to have some interest, but that interest does not need to be more than slight. The “possibility of an interest,” is sufficient.[5]

In Re Seymour [1934] VLR 136; [1934] ALR 268 a secured creditor of a beneficiary under an earlier will sought to show an interest. This was obviously to protect their security interest, which was greatly enhanced if the latter will were to be struck out. The court held that this was a sufficient interest.

In Re Finn [1942] VLR 125; [1942] ALR 167 was a case concerning an undischarged bankruptcy. The validity of later wills was in question. The court rejected the argument that a right to caveat rested only with the official receiver.

“The interest must be demonstrable and not merely speculative. The caveator must be a person whose rights will be affected by the grant.”[6]

To be a beneficiary under an earlier will is not in itself a sufficient interest. However, it would be a sufficient interest if the beneficiary were entitled under a will (or intestacy) immediately preceding the will being propounded.[7]

“Similarly next of kin (or a spouse, including a de facto spouse) do not have locus standi to attack a will if there are other wills not challenged by them disposing of the whole of the testator’s estate anterior to the particular will in question and which will have effect if the revocation clause part of the will under attack is not effective.[8] It may also be noted that in Re Devoy a beneficiary with a bequest under an earlier will equal to a bequest in the will under challenge was also denied standing.”[9]

“The interest need not invariably be proprietary. A creditor has no right to caveat: unless he has obtained administration.[10] The reason is that the creditor may be interested in the estate but not in the grant in question.”[11]

In In the Will of Adcock (dec’d) (1904) 10 ALR 268 it was held that a beneficiary under a will might lodge a caveat against the granting of probate (eg if he or she doubts the testator’s testamentary capacity) even though he or she might not be entitled to any interest in the estate in the event of the will being set aside. The court said at [268]:

“I think an individual has a right to come to the Court and say, “although this will purports to give me certain benefits. I know that at the time the person proposed to give me those advantages, that individual could not, according to the law of the country, legally dispose of her own property.”

However, an executor without any beneficial entitlement has no interest sufficient to justify a caveat in the above context.[12]

Notwithstanding, an executor appointed under another will than that proved or sought to be proved, where there is an issue as to validity, has a relevant interest.[13]

It has been held that an “eligible person” under the Family Provision Act 1982 (NSW) does not on that basis alone have a right to sustain a caveat.[14]

A nominee of a superannuation policy does has been held not to have a sufficient interest in the estate to support the lodgement of a caveat.[15]

An infant may lodge a caveat by his next friend.[16] In Simeon[17] is educative in the sense that the next friend ought to make it clear whether they file the caveat in their personal capacity or in their representative capacity.

Important time frames: expiry and renewal: Lapse of Caveats

A caveat shall take effect as of the date of its filing and shall, unless the court otherwise orders, remain in force for six months. The court can extend the duration or life of a caveat. If the caveat lapses it is treated as if no caveat had been lodged. In those circumstances the court will grant probate without requiring notice to be given to the caveator.[18] The application for extension should be made on motion and supported by an affidavit.

In the case of Re Gwenneth Joyce Hunter; Ex Parte Furey [2017] WASC 22 registrar C Boyle stated at paragraph [14]:

“The caveator does not depose to why she seeks an extension of the caveat, in the sense that she needs to make further enquiries in order to form a view, or to institute action she has resolved to take after having formed a view. She foreshadows no intention to commence contentious proceedings for the grant to herself of letters of administration…The application for an extension of the caveat is refused. I will make a grant on the existing application by Jim on Monday 23 January unless by then this caveator has issued contentious proceedings.”

 Procedure to remove/contested caveats

 In Goddard v Smith (1872) LR 3 P & D 7 the caveator withdrew the caveat and allowed the grant of LOA (CTA) to issue to the administrator. He then later issued a citation to seek the administrator show cause as to why it should not be revoked and that a later will be proved. The court found that the withdrawal of a caveat and subsequent making of a grant does not stop the caveator from propounding a later will. The court said at [10]:

“The Plaintiff did not by withdrawing the caveat cause the defendant to believe in any state of facts, or to alter his position; he merely left him free to pursue his own course unopposed, namely, to take a grant in common form if he so pleased…the withdrawal of a caveat cannot be linked to a discontinuance of a defence to legal proceedings. The caveat is a mere caution to the court; contentious proceedings do not begin until an appearance is entered to the warning of a caveat.”

“In Hughes v Public Trustee (CA(NSW), 19 August 1980, unreported) the court stressed the importance of ensuring that only persons with a valid interest in the obtaining of a grant be permitted to contest the right to administration of an estate: see also Re Devoy [1943]St R Qd 137.”[19]

“The rules are designed to allow what are called interest suits being determined in advance. It is a serious matter where a person with no locus standi is allowed to contest the administration of the estate because the results of such litigation may be utterly futile and it may be necessary for different parties to fight over much of the same ground.”[20]

“On the return of a summons for an order that the caveat cease to be in force, a person is required to tender evidence raising at least a prima facie case on the ground of invalidity relied upon, in default of which the order will be made, with costs against the caveator.[emphasis added][21]

 “This test is different in form, although probably not in substance, from that under the old procedure which required the court to consider whether the lodging of the caveat was not bona fide but vexatious.[22]

Costs

“A caveator whose caveat is ordered to be withdrawn and who, before lodging the caveat, failed to make full enquiries can expect to be ordered to pay the costs of the summons.[23] Especially in cases of caveators who are unable to adduce evidence of the invalidity relied upon which results in an order that the caveat cease to be in force. The usual order for costs is that the costs of the summons should be costs in the proceedings directed to be commenced by the caveator.[24] In Re Young; Purcell & Anor v Acciarito [2008] VSC 96 his Honour Byrne J made the following general observation about costs in contested probate cases, at [5]:”[25]

“The question which remained for my determination was as to the costs of the now abandoned proceeding. The principles which I apply are the following. The starting point is that, like any contested civil proceeding, the costs will follow the event. Where, as here, the event goes against the caveatrix, she should, prima facie, pay the costs of the estate incurred in resisting her objections to the grant. To this rule there are two established exceptions: where the testatrix or the residuary beneficiary has been the cause of the litigation and where there exist circumstances which raise suspicion about the validity of the will. I bear in mind that the award of costs lies in the discretion of the court; these rules are guides for the exercise of that discretion. I am mindful in this context that the admission of the testamentary document to probate is no mere dispute inter partes. The solemn legal effect of a will is such that there is a public interest in the court refusing to grant probate where the propounders have not discharged the burdens which they bear.”

White J followed In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176 and ordered costs against a caveator. The caveator did not show to the court that they had made enquiries as to the testamentary capacity. The caveator did not give evidence to put testamentary capacity into question. The caveat had lapsed after solemn form proceedings were commenced the caveator was joined to the proceedings. White J at [21] ordered that the defendant to:

“…pay the difference between the costs of the proceedings as agreed or assessed on the indemnity basis and the costs that would have been incurred had the application been for a grant of probate in common form.”

 Fees

There is no fee for filing a caveat under Supreme Court Fee Regulations 2002 (WA).

[1] See Ragany v Pusztai (NSWSC, 19 June 1992, unreported, BC9201798) discussed in Bulletin 25, Public Trustee v Mullane (NSWSC, 12 June 1992, unreported, BC9201821).

[2] Mason and Handler Succession Law and Practice NSW (Lexis Nexis).

[3] D’Apice v Farrell (NSWSC, Powell J, 15 May 1992, unreported, BC9201874).

[4] Hutley JA in Hughes v Public Trustee (NSWCA, 19 August 1980, unreported).

[5] Williams and Mortimer; Sunnuck (ed), Executors Administrators & Probate (1970) 15th ed at 399 and Hendy v Jenkins (1900) 21 LR (NSW) B&P 43.

[6] Mason and Handler Succession Law and Practice NSW (Lexis Nexis) citing Re Devoy [1943] St R Qd 137 at [1677.4].

[7] Re Isaacs [1948] ALR (CN) 605.

[8] Re Devoy, above; Munro v Power (NSWCA, 17 June 1976, unreported).

[9] Mason and Handler Succession Law and Practice NSW (Lexis Nexis).

[10] Menzies v Pulbrook (1841) 2 Curt 845; 163 ER 605; Re Devoy at 146 and Dabbs v Chisman (1810) 1 Phil lim 155; 161 ER 946.

[11] Mason and Handler Succession Law and Practice NSW (Lexis Nexis) at [1677.4].

[12] In the Will of Keepkie (dec’d) [1960] Qd R 436.

[13] Public Trustee v Mullane (NSWSC, Powell J, 12 June 1992, unreported, BC9201821).

[14] Arbuz v Sanderson (NSWSC, P 64 of 1985, Waddell J, 24 March 1986, unreported, BC8601166) and Poulos v Pellicer [2004] NSWSC 504; BC200403815.

[15] Re Kelly (dec’d) (NSWSC, Powell J, 2 December 1991, unreported).

[16] In the Will and Codicil of Simeon (1910) 35 VLR 335.

[17] Ibid.

[18] Re Byrne [1937] VLR 33; [1936] ALR 475 ; cf In the Will of Tobin (1899) 5 ALR (CN) 29.

[19] Mason and Handler Succession Law and Practice NSW (Lexis Nexis) at [6069].

[20] per Hutley JA at 4 in Hughes’ case ibid note [8].

[21] Azzopardi v Smart (1992) 27 NSWLR 232.

[22] Mason and Handler Succession Law and Practice NSW (Lexis Nexis) at [1681.1] citing In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN (NSW) 130a, In the Will of Young [1968] 3 NSWR 221; (1968) 70 SR (NSW) 386; 89 WN (Pt 2) (NSW) 1.

[23] In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176 . See also Re D’Apice v Farrell (NSW(SC), Powell J, 15 May 1992, unreported, BC9201874).

[24] In the Will of Maddocks (1891) 8 WN (NSW) 32a.

[25] Mason and Handler Succession Law and Practice NSW (Lexis Nexis) at [1681.1]

[1] Re Emery [1923] P 184.

[2] In the Will of Tobin (1899) 5 ALR (CN) 29.

[3] In the Will of Clarke (1922) 22 SR (NSW) 228 considered the distinction between “granting” and “issuing”

[4] Re Hancock, noted (1978) CLY 1443 and Ragany v Pusztai (NSWSC, Powell J, 19 June 1992, unreported, BC9201798).

[5] Ibid at note [4].

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