Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 18 September 2020.
After his father passes-away, Peter discovers that he has been left-out of the will.
Peter wants to make a claim against the estate and when he hears that his sister is going to obtain a grant of probate, as the executor named in the will, Peter makes an urgent appointment with a solicitor, with a view to lodging a Will Caveat.
A Will Caveat, prevents a grant of probate being made.
The grounds upon which a grant of probate can be challenged, include circumstances where there is a later will, the will-maker lacked capacity to make the will, the will was made as a result of undue influence or fraud, or the will is a forgery.
His father’s will was made several years ago and there is no suggestion that at the time, he lacked the capacity to make the will. They discuss the other potential grounds for objection and the solicitor advises Peter that it would not be appropriate to lodge a Caveat.
Peter is advised that if he lodges a Caveat, without the proper grounds and without sufficient evidence to support his challenge, he risks an order for costs being made against him, which in the Supreme Court, can be substantial.
Peter is advised that the proper approach would be to lodge a Summons, making a family provision application on the basis that as a child of the deceased, he has not received “proper and adequate provision”.
The solicitor explains that a claim of this nature is largely dependent on Peter demonstrating sufficient financial needs and that he has 12 months from the date of death to make a claim.
Peter is relieved that he does not need to lodge a Caveat.
If YOU would like a particular issue addressed please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
