What is a caveat?

A caveat is a legal document filed in the Supreme Court that prevents a will from being admitted to probate and is the starting point to challenge a will (ie, to have the document declared as invalid). For information about estate administration and grants of probate, please follow this link.

Challenging a will is distinct from contesting one or filing a claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (otherwise known as a ‘family provision claim’ or ‘testator’s family maintenance claim’). For information about family provision claims or testator’s family maintenance claims, please follow this link.

A caveat must be filed in the Supreme Court before a grant of probate has been issued. This means a caveat can be lodged before or after the probate application has been filed. If a grant of probate has been issued, then you will not be able to file a caveat. If you wish to challenge a will after a grant of probate has been issued, then you will need to make an application to revoke the grant of probate.

Caveats are a valuable tool to challenge a will and to obtain information regarding the preparation and execution of a will. However, you should be very careful before filing a caveat because there are significant consequences for filing a caveat without a legal basis.

Who may lodge a caveat?

Any person can lodge a caveat against a will to prevent it from being admitted to probate.

However, you should only file a caveat against a will if you have an interest in the estate; ie, your rights or interest in the estate may or will be affected by the outcome of the matter if the will is admitted to probate.

For example, if you will receive a benefit under an earlier will or under the rules of intestacy (ie, where there is no will), then you will have an interest in the estate. If you do not have an interest under an earlier will or under the rules of intestacy, then your claim will be dismissed, and it is very likely that you will be ordered to personally pay the costs of the litigation.

What is the procedure to lodge a caveat?

If a caveat has been filed in Court, the Probate Registrar will send a notice to the person who filed the caveat (Caveator), requesting them to file a document called ‘Caveator’s grounds of objection’ within 30 days. The grounds of objection is a document that outlines the reasons why the will is invalid.

If the grounds of objection are not filed within 30 days, then the caveat will lapse and the application for a grant of probate will proceed.

Once filed, a caveat will last for six months unless the Probate Registrar has sent a notice to the Caveator or a judge makes orders otherwise.

If a probate application has not been filed within six months of filing the caveat, it will lapse and a new caveat will need to be filed.

Once grounds of objection have been filed, the Caveator must file a summons for directions so that the matter can be referred for a directions hearing before a judge. A directions hearing is a procedural hearing where the judge will consider the caveat and the grounds of objection, and determine whether further material (ie particulars of the claim) needs to be filed by the Caveator to support their claim.

Particulars outline the evidence to support the claim and define the questions that a judge must determine at a trial. The content of the particulars will depend on which ground(s) the will is being challenged as explained below.

If the Caveator has demonstrated that they have an arguable case, the judge may make orders for discovery (ie the production of documents) and then refer the matter to a mediation and trial. If the judge determines that the Caveator does not have an arguable case, then the claim will be dismissed.

What are the grounds to have a will revoked?

A will can be challenged/revoked on various grounds. The most common grounds are:

1. the testator (ie the will maker) lacked testamentary capacity at the time of making the will;

2. the testator was unduly influenced to make the will;

3. the will is the product of a fraud;

4. the will is a forgery;

5. the testator did not know and approve the contents of the will (ie they did not understand or agree to the contents of their will), or there are suspicious circumstances;

6. the will does not meet the formal requirements for a will and the testator did not intend the document to be their will.

What is the test for testamentary capacity?

Testamentary capacity refers to a testator’s legal and mental ability to make a will. In order to have testamentary capacity, a testator must:

1. understand the nature and effect of making a will;

2. understand and recall the general nature and value of their estate;

3. be aware of who would have a natural claim on their estate;

4. be able to evaluate or discriminate between the claims on their estate;

5. not be affected by a disorder of the mind or delusion, such that the will would not have been made if the testator was of sound mind.

Generally speaking, the fact that a testator is very old and suffers from illnesses will not be sufficient evidence to support a successful challenge to a will. Similarly, if a testator has memory problems, this alone will not be sufficient to demonstrate that a testator lacked capacity. However, these are all factors the Court will take into account when assessing capacity.

If a testator was suffering from a mental/cognitive illness at the time of the will (eg dementia, Alzheimer’s disease, schizophrenia, delirium etc), then it will be important to obtain medical evidence from the testator’s treating medical practitioners around the time the will was signed. Obtaining medical evidence that confirms the testator was suffering from a severe mental/cognitive illness when the will was prepared can significantly enhance your prospects of challenging a will on the ground of lack of testamentary capacity, particularly as this would be viewed as contemporaneous evidence.

Even then, testamentary capacity is a legal test and not a medical test. This means that if the solicitor who prepared the will has made detailed file notes regarding their attendances to prepare and witness the will, then this evidence could be preferred over medical evidence about the deceased’s mental capacity.

What is the test of knowledge and approval?

Knowledge and approval means that the testator must have understood the contents of their will and its effect. For instance, evidence that confirms a testator was confused or did not properly understand the contents or effect of their will can be sufficient to challenge a will under this ground.

For example, if a testator had limited formal education and signed a very complex will, then this may support an argument that the testator did not know or approve their will. This is because it would be incredibly difficult for an uneducated person to understand a will containing complex testamentary trusts.

Other examples of evidence to support a lack of knowledge and approval include evidence that demonstrates:

1. the testator could not read the language the will was written in and a translator was not provided;

2. the testator was illiterate or blind and there is no evidence that the will was read out to them;

3. the will did not properly dispose of the estate (ie, if a will contains significant errors, a testator would not sign the document if they knew and understood it was invalid);

4. the testator did not have time to consider the terms and effect of the will;

5. the testator did not have legal advice and the effect of the will was not explained to them.

Suspicious circumstances can also support a claim of lack of knowledge and approval, especially when there are a series of circumstances that, when considered together, give rise to a claim that the testator did not know or understand their will. Such circumstances include:

1. where a testator is elderly, unwell and vulnerable (eg where a will is prepared on the testator’s deathbed/hospital bed);

2. where a beneficiary has procured/drafted the will for the testator;

3. where the testator changes their longstanding will-making practices (eg where a testator does not tell their long-term partner about their new will or ceases using the services of their longstanding family solicitor);

4. where the testator’s will substantially changes without explanation (eg where a testator’s will, which previously left everything to their children, is changed such that their estate is left to a neighbour).

What is the test for undue influence?

Undue influence is one of the most frequently raised grounds to challenge a will. However, undue influence is also one of the most difficult grounds to prove and therefore is rarely successful.

In order to prove a testator was unduly influenced to make their will, the Caveator must prove that there has been ‘coercion’ and that the testator’s own decision-making was overborne such that the contents of the will do not reflect their own true wishes.

Coercion is very difficult to prove, and the mere suspicion of undue influence will not suffice. This is because there is rarely ever direct evidence of coercion (eg a written letter from a testator stating they had been forced to change their will).

However, the Courts may accept indirect evidence or circumstantial evidence where there is a ‘web’ or multitude of facts that are harmless on their own but when considered together as a whole amount to undue influence.

As an example, if a testator was of old age, suffering from illnesses and was reliant on anyone for personal, legal, financial and/or social matters, then these factors are relevant to whether there has been coercion.

Undue influence is also one of the most serious allegations a person can make in Court. Accordingly, if an undue influence claim is unsuccessful then the Caveator is likely to be ordered to pay the estate’s costs of responding to the proceedings.

What is the test for forgery?

In order to demonstrate that a will has been procured as a result of the fraud, a Caveator must demonstrate that the testator was misled by the fraud and that the fraud must be a material factor that has influenced the creation of the will.

A simple example of testamentary fraud is where a testator is misled and signs a document that they did not know was a will. A more complex example would be where someone makes false representations to a testator and, based on the false representations, the testator makes their will in a certain way. In this example, it is incredibly important to demonstrate that the false representations directly influenced the testator to make the will as they did.

In order to demonstrate forgery, a Caveator must have evidence that the testator did not in fact sign the will. Such evidence would need to demonstrate that:

1. The signature on the will does not belong to the testator. In this case, it would be important to obtain evidence from a handwriting expert confirming the signature does not belong to the testator.

2. The will in question was not in existence at the time it was signed.

3. The testator could not have signed the will at the place and date it was signed because they were somewhere else (eg overseas). 

What are the formal requirements of a will?

The formal requirements for a valid will are as follows:

1. The will must be in writing and signed by the testator or by another person at the direction of the testator (eg where the testator is incapable of signing).

2. The signature is made with the testator’s intention of executing a will, whether or not the signature appears at the foot of the will.

3. The signature is made or acknowledged by the testator in the presence of two witnesses.

4. The will must be witnessed by two people in the presence of the testator (not necessarily in the presence of each other).

If a will does not comply with these requirements, then it is possible the will may not be valid. However, in certain circumstances, the Court may dispense with the formal requirements outlined above and admit to probate a will that does not exactly comply with these requirements.

If a will contains spelling mistakes and other errors (eg names and addresses spelt incorrectly), then this will not necessarily mean the will is invalid.

Who pays the cost of challenging a will?

Generally speaking, legal costs are said to ‘follow the event’, which means that the successful party will have their costs paid from the estate. This means that if a Caveator is successful, then the Court is likely to order that their costs are to be paid from the estate. Conversely, if a Caveator is unsuccessful, then they could be ordered to bear their own costs and pay the estate’s costs of the litigation.

However, there are exceptions to this rule. For instance, if the proceedings were caused by the conduct of the testator or by beneficiaries in the will, or if the circumstances surrounding the preparation/signing of the will warranted an investigation, then an unsuccessful Caveator may still have their costs paid from the estate.

If any of the parties have behaved unreasonably in the litigation, then a judge has the direction to order that a party bear their own costs personally. Generally, a party to a will challenge will be deemed to have behaved unreasonably if they have rejected reasonable offers to settle or if they have behaved in a manner which has unnecessarily increased the parties’ legal costs (eg by sending voluminous correspondence, by filing unnecessary or deficient affidavit material, or by not complying with orders of the Court).

 If you have filed a caveat and you subsequently discover you do not have enough evidence to support your claim, then you should withdraw your caveat as soon as possible. Failure to do so may mean you are forced to pay the estate’s legal costs to respond to the caveat, and those costs could be significant.