Probate Caveats in Victoria: Purpose, Grounds and Procedure

What a Probate Caveat Does

While a caveat is on foot, the Probate Office will not make a grant of representation in the estate. The caveat does not itself resolve a dispute about the Will, capacity, entitlement or provision — it prevents a grant from issuing while it is effective. If grounds of objection are filed within the period allowed by the Rules, the matter then proceeds under Order 8 of the Supreme Court (Administration and Probate) Rules 2023.

A caveat is not the mechanism for challenging a grant that has already been made, and it does not stop, extend or replace a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic).

When a Caveat May Be Appropriate

A caveat should be considered only where the caveator has standing in the estate and identifiable grounds that go to whether a grant should be made or to whom. Examples include:

• a claim that a later testamentary document revokes the Will being propounded;
• a genuine, evidence-based concern about testamentary capacity, knowledge and approval, or undue influence;
• a dispute about due execution or the identity of the Will;
• a dispute about which person is entitled to apply for a grant (for example where an earlier-named executor survives).

Dissatisfaction with the size of a gift under a valid Will, or a wish to press an executor to negotiate, is not a caveat ground. Those concerns are addressed, if at all, through a Part IV family provision claim or through an application concerning the executor's conduct after a grant. See our companion guides on challenging testamentary capacity and undue influence and suspicious circumstances.

Filing a Caveat

A caveat is filed at the Probate Office through the Court's RedCrest-Probate electronic filing system, on payment of the fee prescribed by the current probate fee schedule. It must be filed in the form and manner required by the Rules and the Court's current guidance. The document must identify the deceased, the caveator, the caveator's standing in the estate and the grounds of the caveat.

The caveat becomes effective on filing. Under the Rules it expires six months after filing unless it is renewed as permitted. It may also be withdrawn by the caveator or otherwise dealt with by order of the Court.

What Happens When a Grant Is Sought

When a person applies for a grant while a caveat is in place, the Registrar will give the caveator the notice prescribed by the Rules. Under rule 8.02, the caveat then expires 30 days after that notice is given unless, within that period, the caveator files grounds of objection or the Court otherwise orders.

Grounds of objection are filed through RedCrest-Probate. They must state the caveator's standing and set out the grounds on which the caveat is maintained, with the particularity required by the Rules and the Court's current probate-office guidance.

The Caveat Summons

Once grounds of objection have been filed, the matter is progressed by a caveat summons issued out of the Probate Office and returnable before the Court. Under the Rules:

• the caveator must file the caveat summons within seven days of filing grounds of objection;
• if the caveator does not do so, the grant applicant may file the summons;
• the summons is served in accordance with the Rules; and
• consistent with current Supreme Court probate practice, the return date is fixed as a directions day in the List at least 28 days after the summons is filed.

The first hearing is ordinarily for directions. What happens after that depends on the grounds relied on, the evidence, and the orders the Court decides to make for the future conduct of the matter.

Standing and Grounds

The Rules require the caveator to identify their standing — for example as a beneficiary under an earlier Will, a person entitled to apply for a grant, or a person with an arguable basis to challenge validity — and to state the grounds relied on. Generalised objections risk being set aside by the Court, with costs consequences.

Costs

Costs orders in probate proceedings are discretionary. They depend on the strength of the grounds, the caveator's conduct and the outcome. A caveat filed or maintained without proper standing or arguable grounds may attract an adverse costs order against the caveator personally. See our companion guide on costs in contested will proceedings in Victoria.

Caveats and Family Provision Claims

A caveat and a Part IV family provision claim address different issues. A caveat concerns whether a grant should issue and to whom. A Part IV claim seeks further provision from the estate and is distinct from whether or in what form a grant should issue. The two proceedings may run at the same time, but one does not extend the time for the other. Time limits for Part IV claims are addressed in our guide to time limits for TFM claims and our family provision claims overview.

After a Grant Has Been Made

The caveat mechanism is directed to preventing a grant from issuing. Once a grant has been made, a party who wishes to challenge the grant must consider other proceedings — for example, an application for revocation of the grant — which have their own requirements and are not addressed in this article.

When to Take Advice

The decision to file a caveat, and the decisions made when a caveat is in place, involve procedural rules, standing questions, evidentiary requirements and costs risk. Legal advice should be taken before filing. Our estate litigation team and probate and estate administration team can advise on standing, grounds, the current RedCrest-Probate procedure and the appropriate next step. See also our overview of estate litigation lawyers in Melbourne.

Frequently Asked Questions