Caveats – Challenging A Will

Challenging a Will Caveats

There a two types of caveats. One is sometimes referred to as a property caveat and is placed on the title of property (real estate). That type generally has no place in Wills and Estates Law.

The other type of caveat is sometimes referred to as a probate caveat. When the probate caveat has been filed in court the court will not make a grant of probate to any person claiming to be entitled to a grant until the parties finally agree for the caveat to be removed or by court order.

Challenging a Will – Commencing Proceedings

If the parties filing the caveat and the party attempting to obtain a grant of probate cannot agree on the validity of the Will and removal of the caveat one of them must commence proceedings for a judge to decide the issue. The commencement is by a Statement of Claim usually by the person stating/alleging the Will is valid for reasons set out in the claim.

The other person (usually the person who has filed the caveat) files in court a Defence to the Claim the Will is valid setting out the alleged reasons the Will in not valid.

Both the claimant and the defendant with their legal team prepare affidavits evidence in support of their claim/defence for the judge to read and consider his/her judgement/decision.