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Probate caveats

While a property caveat is lodged over real estate (see Law Handbook page on Caveats), a Probate Caveat is a specific type of caveat relating to an estate matter [see Administration and Probate Act 1919 (SA) s 26; Supreme Court Probate Rules 2015 (SA) Rule 52(1); Uniform Civil Rules 2020 Rule 254.3]. A probate caveat prevents (at least temporarily) an executor or administrator from obtaining a grant of probate or letters of administration that would enable the finalisation of an estate. It allows the person lodging the caveat to raise concerns they may have (such as whether the testator lacked testamentary capacity, or whether there is a later will that revokes an earlier will, for example) before probate or letters of administration is granted.

Like property caveats, a person lodging a caveat should have grounds for doing so, and the caveat should not be used as a tool simply to frustrate the estate process. For example, a person should not lodge a caveat when they intend to make a claim for inadequate provision under the Inheritance (Family Provision) Act 1972 (SA), as this is better dealt with through other processes. The person lodging the caveat should be prepared to participate in Court proceedings if the caveat is challenged. Court costs may apply and such proceedings may be complex. As there are cost risks involved in lodging a probate caveat where there are no grounds to do so, any person wishing to lodge a probate caveat should first seek legal advice.

A probate caveat will expire 6 months after it is lodged, unless it is otherwise withdrawn, dealt with, or extended in that time [See Supreme Court Probate Rules 2015 (SA) Rule 52(4)].

All probate caveat lodgements and the filing of caveat documents is done online via the CourtSA website.

As of 1 July 2018, the fee for entering or withdrawing a caveat is $35.75. For current fees visit theCourt Administration Authority Website.

Probate caveats  :  Last Revised: Fri May 29th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.