What happens when a caveat is lodged?
What happens when someone lodges a caveat against the estate or your application for probate?
As I alluded in my previous post, my sibling and fellow named co-executor to our mother's estate decided to take the nuclear option and raise a caveat against my application for probate as a co-executor. My application as co-executor explicitly included "leave reserved" for the co-executor to apply at time that was more convenient for them. Therefore, raising a caveat in this situation was completely unnecessary as they could have just assumed their role as a co-executor by filing an application for probate as a co-executor and their application would have joined mine.
The immediate effect of someone lodging a caveat against the estate being the Court suspends processing of the application for representation, whether that is for the grant of probate where a will is attached, or letters of administration, with or without the will attached, until the caveat has been addressed.
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 (see p. 523, post).
The Administration Act 1903 (WA) and the Non-contentious Probate Rules 1967 (WA) set out specific provisions for the process that follows when a caveat is raised and how it must be dealt with. Whilst the person that raised the caveat known as the "Caveator", may have succeeded in putting a stop to your application preventing it from proceeding, it is not intended to be a mechanism for simply holding up or delaying the administration of an estate without good reason.
In my case, I can only assume that my co-executor was unaware of what a caveat is and the ramifications that ensue or that they were poorly advised by their solicitors as to what it entails.
What constitutes a good reason for raising a caveat?
Generally, a caveat is used to make a claim against the will itself, whether that is in relation to the validity of the will or contesting the provisions of the will, for example a person believing that they have an entitled that was wrongly omitted from the will. The less frequent and therefore poorly defined within the law, is where a person has a challenge that the executor or administrator applying for representation of the estate is unfit or not suitable to carry out their role.
The intent of the caveat is to provide the caveator with time to properly investigate and obtain any necessary evidence to support their claim and for appropriate action to then be taking to address the claim, which would generally be laying the foundations for contentious action under civil proceedings for the claim to be brought to and heard by the court.
Whilst anyone with an interest in an estate can raise a caveat under the law, "A caveat is not a tool to frustrate the granting of administration to an
entitled applicant. Much less is it a mechanism for ventilating family
hostilities.", 2017 WASC 22.
In my case, the Caveator, being my sibling and jointly named and appointed by the will as co-executor to the estate, cited three "reasons" as the basis for lodging the caveat:
- not providing the Caveator with adequate notice of my intention;
- stating in my application that I was resident in Western Australia, when in fact I am a resident and domiciled in the UK; and
- that I have not provided any Guarantee.
I'll cover my response to these claims in more detail in another post. However, on first reading of these claims, being the basis of the caveat against my application, they do appear to be valid. Do they hold enough water to warrant raising the caveat?
A key test to consider is whether or not the caveat or caveator's claims give rise to any question around the validity of the will, or the testator's fitness at the time of making the will. These forms of claims, if maintained by the caveator, will likely require evidence to be brought before the Court to make a judgement under civil proceedings.
The distinction between grants in common form and those in solemn form is that a common form proof of the Will is where the Will's validity is not challenged or questioned. The executor nominated by the Will or indeed, their successor or the person entitled to a grant of probate or letters of administration with the Will annexed, presents the Will with their application.
Where the validity of a Will is contested, some form of court proceedings will normally be brought. After which and based on the outcome of which, the Court will provide a grant in solemn form that provides the validity of the will and the terms provided.
Notice of Requisition
Once a caveat has been lodged, the onus moves to the probate applicant, being those seeking to prove the Will to take action to remove the caveat, as it stops a grant being issued until the caveat has been removed.
Other jurisdictions, such as the UK have a defined process and prescriptive steps for addressing a caveat, each with timeframes to ensure the orderly and timely resolution to prevent undue delays to the administration of the estate. Even jurisdictions closer to Western Australia, such as New South Wales and Victoria have directions and prescribed steps for the process that follows a caveat being entered.
In Western Australia, sections 63 and 64 of the Administration Act 1903 establish the process for challenging and resolving disputes over the administration of estates.
Under Section 63, any individual can lodge a caveat with the Principal Registrar to oppose the granting or sealing of probate or letters of administration under the Act, before such documents are issued, and must provide their name and a serviceable address as per the rules.
Section 64 allows for the removal of a lodged caveat by the court, upon application from the individual seeking probate or administration, which must be served to the caveator at the address provided in their caveat. The court may decide on such applications based on affidavit, oral evidence, or another directed method, ensuring procedural fairness in addressing the caveat.
Once a caveat is raised, the Registrar will issue a Notice of Requisition to the applicant to advise of the caveat, providing a copy, and notice that the application is not able to proceed until it is dealt with or otherwise expires after 6 months of its issue. The notice further states that the applicant is either to make an application to the Court for the removal of the caveat in line with the Administration Act 1903, or to commence civil action as contentious proceedings in line with the rules of the Non-contentious Probate Rules 1967:
33. Caveats
(1) A person having any interest in an estate in which application is
being made for a grant or the sealing of a grant, and intending to
oppose the application, shall either personally or by his solicitor
enter a caveat in the Registry.
(2) A caveat shall be in accordance with Form 3, and shall state
fully the nature of the interest of the caveator.
(3) Subject to subrule (4), a caveat shall remain in force for the
space of 6 months only from the day it is entered and then
expire and be of no effect, unless otherwise ordered.
(4) Notwithstanding that a period of 6 months has elapsed after
entry of a caveat, the Registrar may require the applicant for a
grant to give notice to the caveator before proceeding with his
application.
(5) Where the applicant for a grant or for the sealing of a grant does
not obtain an order under section 64 of the Act, he shall, within
one month, or such extended time as a Judge or the Registrar
may allow after notice of the entry of the caveat, commence
contentious proceedings by issuing a writ against the caveator
and proceeding in the ordinary manner.
(6) A caveator may, if no step is taken by the executor or applicant
for administration within a period of one month after notice of
the entry of the caveat, apply to a Judge or the Registrar for an
order directing the executor or applicant to proceed with his
application; and the Judge or Registrar may make an order upon
such terms as he thinks fit.
Therefore, the only ways to proceed under the provisions set out in the rules are:
- wait out the 6 months, upon which the caveat will expire with no effect;
- in circumstances as directed by the Registrar, provide notice to the caveator;
- within 1 month, apply for the Court to issue an order to remove the caveat (under section 64 of the Act); or
- commence contentious proceedings as a civil action; and
- if the applicant does not take any action within 1 month, the Caveator may apply to the Judge or Registrar to order the applicant to proceed with their application.
The alternative being the caveator withdraws or removes their caveat.
Court Proceedings
The rules do not make it clear however that an application for the removal of the caveat does not take the form of an affidavit in response to the caveat, as per the process set out for responding to the Notice of Requisition.
64. Court may remove caveat
(1) In every case in which a caveat is lodged the Court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be remove the same.
(2) Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.
(3) Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct.
Applying under Section 64 of the act involves the issue of a Chamber Summons, served to upon the Caveator and a Memorandum of Conferral raised to attest that appropriate steps have been undertaken in attempt to resolve the matter.
Whilst it appears to be an alternative to commencing court proceedings as a contentious case, it also involves court proceedings, albeit heard by the Master or Judge in chambers rather than full court.
I see this process as being fundamentally flawed as it does not require the Caveator to justify, substantiate or provide evidence of their claims upfront or at any point, thereby allowing anyone to effectively delay the process by 6 months and the only way for the applicant to proceed is to issue a summons to commence proceedings with all of the cost and ceremony involved.
