Legal Comment by Mark Illidge

September 2009

If you have concerns about the mental capacity of a will-maker, you should seek legal advice about filing a caveat in the Supreme Court to prevent the Executor of the will obtaining probate and administering the estate under the will.

In simple terms, probate is the official seal of the Supreme Court that a will is valid. Probate is not always required to administer an estate, however where the value of the estate is such that financial institutions require probate before their assets are released or the validity of the will is in question, a caveat may prevent the Executor from administering the estate until the issues concerning the will are resolved.

If required, a Supreme Court caveat should be filed as soon as possible after a person passes away, and before probate is obtained. A caveat filed in a Supreme Court expires after six months, however it is renewable. The Supreme Court is empowered to determine whether a person had the requisite capacity at the time the will was made and whether a will is valid. If a caveat has been filed in a Supreme Court and the Executor makes an application for probate of the will, the Supreme Court will notify the person who filed the caveat and request that they file a notice in support of the caveat within 14 days.

Clearly the lodging of a caveat should only be done where there are serious concerns about the validity of a will. Where such concerns exist it forces an Executor to commence Supreme Court proceedings to establish whether or not the will-maker had the requisite capacity to make a will or whether the will is valid.

To find out more about the authors you can read About Us

For more information or to make an appointment please Contact Us