Order 19 Division 10 of the National Court Rules 1983 provides for two kinds of caveat, which do different things.
Rules 60 and 61
(1) A person claiming to have an interest in an estate may lodge in the Registry a caveat in Form 95 in respect of any grant or reseal being made in the estate.
(2) It shall state fully the nature of the interest claimed by the caveator and an address for service.
(3) Where a person, to the knowledge of the caveator, is making or intending to make application for a grant or resealing, the caveator shall, within seven days of the lodging of the caveat, serve a copy of the caveat on him.
(1) A person having an interest in an estate may lodge in the Registry a caveat in Form 96 requiring proof in solemn form of any will.
(2) and (3) impose the same requirements as to stating the interest and address for service, and as to service within seven days.
| Caveat in respect of grant — Form 95 | Caveat for solemn form — Form 96 | |
|---|---|---|
| Who may lodge | A person claiming to have an interest | A person having an interest |
| Effect | Stops a grant or reseal being made without notice | Requires proof in solemn form of any will |
| Use it when | You dispute the applicant’s entitlement, or want notice before any grant issues | You want the will proved properly — not merely accepted on the papers |
| Citation | — | The caveator shall … be cited to see the proceedings — r 67 |
Proof in common form is what happens on an ordinary uncontested application: the will is proved on affidavit under Rule 24. Proof in solemn form means proving the will in contested proceedings, with the attesting witnesses available.
Rule 67: where there is in force a caveat requiring proof of a will in solemn form the caveator shall, in proceedings for a grant or for resealing in which the plaintiff seeks to prove a will to which the caveat relates, be cited to see the proceedings. See citations.
Rule 69
(1) Where there is in force a caveat in respect of any grant or resealing being made in an estate, proceedings for a grant or for resealing in the estate shall be commenced by writ of summons.
(2) Unless the Court otherwise directs, the caveator shall be a party in the proceedings.
Without a caveat the application is a Division 3 matter: by summons in Form 70, heard in the absence of the public, without the appearance before the Court of any person, usually before the Registrar.
With a caveat it becomes a writ of summons proceeding with the caveator as a party — pleadings, and a hearing. That is why a caveat is an effective step, and why it should not be lodged without a real interest.
Rule 62
(1) A caveat shall take effect as of the date of lodgement and shall, unless the Court otherwise orders, remain in force for six months.
(2) The Court may extend the period of duration of a caveat.
Diarise the six months. A caveat that lapses leaves the estate open to a grant without notice.
Rule 68
(1) A person intending to apply for a grant or resealing, faced with a caveat, may bring proceedings for an order that the caveat or each of the caveats, cease to be in force in respect of the intended application.
(2) The proceedings shall be commenced by originating summons.
(3) The caveator, or each of the caveators, shall be a defendant.
Where the Court considers that the evidence does not show —
(a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest; and
(b) some matter occasioning doubts as to whether the grant ought to be made,
the Court may order that the caveat cease to be in force in respect of the intended application.
An interest, or a reasonable prospect of establishing one — and some matter occasioning doubts as to whether the grant ought to be made. A caveat lodged out of general suspicion, without a stated interest and a stated doubt, is vulnerable.
That is also why Rules 60(2) and 61(2) require the caveat itself to state fully the nature of the interest. Draft it properly at the outset.
Note sub-rule (5): Order 12 Division 4 (summary disposal) does not apply to the proceedings. The caveat cannot be swept away by a summary judgment application.
Rules 63 to 66
Rule 63 — where there are no proceedings for a grant or resealing: the application for leave shall be made by originating summons, there shall be no defendant, a draft minute of the order sought shall be lodged with the Registrar before any order is made, and the order shall be entered.
Rule 64 — where there are proceedings: if the caveator has not given notice of his intention to defend, he shall do so; and the application for leave shall be made by motion on notice in the proceedings.
Rule 65 — the caveator withdraws by writing in the margin of the caveat “I withdraw this caveat” and dating and signing the endorsement, and must within seven days serve notice of the withdrawal on any person who, to their knowledge, is applying or intending to apply.
Where a caveat is withdrawn and the applicant for the grant is unable to recover from the caveator costs which the caveator has been ordered to pay, that person shall be entitled to be recouped by the estate the amount of the costs properly incurred, in addition to other costs to which they are entitled out of the estate.
So an unmeritorious caveat ultimately costs the beneficiaries. That is a further reason for caution before lodging one.
Sources
- National Court Rules 1983 — O 12 Div 4; O 19 rr 7–9, 24, 60–69, 71; Forms 70, 95, 96
The Wills, Probate and Administration Act 1966 is not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.