Caveats Against Grant of Representation
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Generally, where there are serious questions to be tried as to the validity of a Will, lodging a caveat in the Supreme Court of Queensland against the Grant of Representation will provide further time to investigate the issues.
If a caveat is lodged without proper or adequate grounds, there are also very serious implications and even adverse cost orders in some cases.
A caveat is a legal document that is filed in the Supreme Court of Queensland preventing a Grant of Representation, whether a Grant of Probate or a Grant of Letters of Administration.
A person who claims to have an interest in an estate may be able to file a caveat. This can include an executor or trustee, a beneficiary, a person who has been left without under a Will and so on.
Once the caveat is filed in the Supreme Court of Queensland, it will remain in force for 6 months, or until the caveat is withdrawn, set aside by the court.
Once a caveat is filed, a party may be required to produce a notice in support of the caveat. Further, in Queensland, the court rules provide various different types of caveats which can be filed including:
A caveat which requires an application for a Grant to be referred to the court as constituted by a Judge – usually filed in circumstances there is a n issues as to who should apply for a Grant
A caveat requiring proof in solemn form of the Will of the deceased – usually file where there is an issue in relation to the form or signing of a Will
A caveat against the Grant being issued for the estate – usually where there are suspicious circumstances, fraud, lack of testamentary capacity and the like
The Court can set aside a caveat only if the Court considers that the evidence by the caveator fails to:
Show that the caveator has good prospects of establishing an interest in the estate; or
Raise doubt about whether a Grant may be made; or
The caveat has been filed improperly or not for good reason.
There are severe cost implications when dealing with caveats, especially if a caveat is filed and it can be later provided the wrong caveat was filed, or it was filed without proper reason or prospects of success, or a person did not have an interest in the estate.
It is crucial to immediately engage a lawyer who understands caveats and the process by which one should be filed and for what purpose.
At RHC Solicitors, we have extensive experience in filing caveats and seeking to set them aside.
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