What a Probate Caveat Does

A probate caveat is a formal notice that prevents the Supreme Court from issuing a grant of probate until the person who lodged it (the “caveator”) has been heard. It is governed by Part 78 Division 10 of the Supreme Court Rules 1970 (NSW).

In plain terms, a caveat hits pause. It does not invalidate the will. It does not change the executor’s role. It simply stops the grant from being issued while the underlying validity concerns are examined.

A caveat is filed using Form 141 in the Probate List of the Supreme Court of NSW. Once filed, it sits on the court’s record and is checked whenever someone applies for probate of that particular estate.

When You Should Lodge a Probate Caveat

A caveat is the right step when you have genuine grounds to challenge the validity of the will itself. The Supreme Court of NSW lists the most common grounds on its contested proceedings page:

• The will is not the last will of the deceased. A later valid will exists, or there is reason to believe one does.
• The will-maker lacked testamentary capacity. Capacity is assessed under the common-law test from Banks v Goodfellow: the person must understand what a will does, know what they own, weigh up who has a reasonable claim on their estate, and not be suffering from a disorder of the mind that distorts their judgment about those dispositions.
• The will-maker lacked knowledge and approval of the contents. This often arises in late-life wills where the will-maker did not read or fully understand what they signed.
• The will is a forgery, fraudulent, or was made under undue influence or pressure. Pressure from a beneficiary, a carer, or a family member that overrides the will-maker’s free choice can invalidate a will.
• The will was not executed correctly. Wills must comply with Part 2.1 of the Succession Act 2006 (NSW), including proper signing and witnessing.
• The will was revoked during the will-maker’s lifetime. Either by a later will, by destruction, or by operation of law (for example, marriage in some circumstances).

A caveat is not the right tool if you are making a family provision claim under Chapter 3 of the Succession Act 2006 (NSW). Family provision claims accept the will as valid and seek a larger share. They proceed on a separate track and cannot be filed until probate has been granted.

Who Can Lodge a Probate Caveat in NSW

A caveator must have a “sufficient interest” in the deceased’s estate. In Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504, Justice Windeyer held that any person with an interest, or a reasonable possibility of an interest in the estate (however remote) is entitled to lodge a probate caveat.

In practice, this usually means:

• The beneficiary named in the current will, or in an earlier will, the caveator believes is the last valid will
• Family members who would inherit on intestacy if the will is set aside
• Anyone with a credible claim to a share of the estate based on a different valid testamentary document

The Supreme Court of NSW has confirmed that the following groups do not have a sufficient interest for caveat purposes: creditors of the deceased, people with a court order against the deceased (such as a Family Court order), and people whose only claim is a family provision application. Their claims are handled in a different jurisdiction and are not affected by which will is admitted to probate.

If the court later finds the caveator did not have a legitimate interest, the caveator can be ordered to pay the legal costs incurred by the estate in defending the caveat. This is one of the most important reasons to obtain specialist legal advice before lodging.

How to Lodge a Probate Caveat

The process is straightforward in principle but requires careful preparation to avoid procedural problems or a cost order. In my experience, the strength of the underlying evidence matters far more than the speed of filing. Each of the following steps must be completed correctly:

Step 1: Confirm You Have Valid Grounds

Valid grounds include capacity, undue influence, fraud, defective execution, or a later will. Suspicion alone is not enough. There must be a credible factual basis before the caveat is filed.

Step 2: Confirm Your Interest in the Estate

Review the will, any earlier wills you can locate, and the intestacy rules under Chapter 4 of the Succession Act 2006 (NSW). You must be able to show that you would benefit if the contested will is set aside.

Step 3: Gather Evidence

The evidence needed to support a caveat usually includes medical records (for capacity), the solicitor’s file (for execution and knowledge and approval), witness statements, earlier wills, and any correspondence that shows the will-maker’s true intentions.

Step 4: Complete Form 141

The form is available through the Uniform Civil Procedure Rules website. It records the caveator’s details, the deceased’s details, and the grounds for the caveat.

Step 5: Pay the Filing Fee

As at 1 July 2025, the fee for lodging a caveat against a Grant or Reseal is $54 for individuals and $109 for corporations, per the current Supreme Court fee schedule. Fees are reviewed each year on 1 July.

Step 6: File With the Supreme Court Probate Registry

Once filed, the caveat is recorded on the court’s system. Any probate application for that estate is flagged and will not proceed until the caveat is dealt with.

Step 7: Serve the Caveat

Service is required on any known or potential applicants for a grant of probate or administration. This puts the executor on notice so the parties can engage on the underlying issues.

How Long a Caveat Stays in Force

A probate caveat remains in force for six months from the date it is filed, unless the court orders otherwise. The 6-month duration is fixed by the Supreme Court Rules 1970 (NSW).

If the underlying validity concerns have not been resolved by the time the caveat is about to expire, the caveator can file a fresh caveat to keep the protection in place. Repeated caveats without progress, however, expose the caveator to cost orders, so this is a strategy that needs careful management.

What Happens After a Caveat Is Lodged

Once a caveat is on file, the executor cannot obtain a grant of probate in the usual way. From there, several paths are possible.

Negotiation and Voluntary Withdrawal

The Supreme Court prefers parties to resolve validity disputes between themselves where possible. If the executor produces evidence that satisfies the caveator’s concerns (for example, a contemporaneous capacity assessment from the will-maker’s GP), the caveator can withdraw the caveat by lodging a Withdrawal of Caveat.

Application to Remove the Caveat

The probate applicant can file a Notice of Motion asking the court to order the caveat to cease, usually on the basis that the caveator lacks a sufficient interest. The Registrar in Probate will list the matter for hearing.

Contentious Probate Proceedings

Where the parties cannot resolve the issue, one side typically commences contested probate proceedings by filing a Statement of Claim seeking probate in solemn form. The other side files a Defence. The matter is then case-managed by the Registrar in Probate, with directions for evidence, and ultimately determined by a judge.

Practice Note SC EQ 7 (Probate and Family Provision List) governs the procedure once a matter becomes contested. It is available on the Supreme Court of NSW website and is the procedural roadmap every probate dispute lawyer in NSW works to.

Costs and Risks of Lodging a Probate Caveat

A caveat is a serious step. Used correctly, it protects a legitimate claim and forces a proper investigation of the will’s validity. Used carelessly, it exposes the caveator to significant cost consequences. The main risks to weigh up before lodging are:

• Adverse cost orders. If the court finds you lacked a sufficient interest, or that the caveat was lodged without proper grounds, you may be ordered to pay the estate’s legal costs in addition to your own.
• Delay for the rest of the family. A caveat pauses the entire probate process. Beneficiaries who are not part of the dispute may have to wait months for the estate to be resolved. Frivolous caveats damage family relationships in ways that are hard to repair.
• Legal costs. Even where the caveat is justified, the costs of evidence-gathering, affidavits, and contested hearings can be substantial. Settlement is almost always cheaper than a full hearing.
• Strict timing. If you suspect a problem, you must act before probate is granted. Once the grant has been issued, the caveat option is gone and the only remaining remedies (such as an application to revoke the grant) are far more difficult and expensive.

How a Specialist NSW Probate Lawyer Helps With a Caveat

Probate caveats are not general-practice work. They sit at the intersection of evidence, procedure, and tactical judgement, and the cost of getting them wrong is high.

Our team at Empower Probate Lawyers is a specialist practice focused exclusively on probate, estate administration, and will disputes. Our director, Oliver Morrisey, holds a Master of Laws in Wills and Estates (High Distinction) and has more than a decade of experience acting for both caveators and executors in contested probate matters across NSW. What this looks like in practice:

• Initial consultation at no cost. We review the circumstances of the will, the evidence you have, and the likely grounds for a caveat before any retainer is signed.
• Honest advice on prospects. If the grounds are weak, we say so. Filing a caveat without genuine grounds is one of the fastest ways to face an adverse cost order.
• Fast lodgement where the grounds are strong. Timing is everything before a grant is issued. We can lodge a caveat in a matter of hours when the situation calls for it.
• Strategy through the full lifecycle. Caveats are the start of a process, not the end. We act for clients through negotiation, mediation under Practice Note SC EQ 7, and contested hearings where they become necessary.
• Deferred fee arrangements in eligible cases. We discuss fee structures upfront, so cost is not a barrier to protecting a legitimate claim.

Speak With a Probate Caveat Lawyer in NSW

If you are concerned about the validity of a will and believe a grant of probate may be applied for, the window to act is short. Call Empower Probate Lawyers on 1300 481 161 for an initial discussion of your situation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

How long does a probate caveat last in NSW?

A probate caveat remains in force for six months from the date of filing unless the court orders otherwise. If the underlying validity concerns have not been resolved by then, a fresh caveat can be filed, though repeated lodgements without progress can attract cost consequences.

Can I lodge a probate caveat after probate has been granted?

No. A probate caveat can only be lodged before the Supreme Court of NSW issues a grant. Once a grant has been made, the only path is an application to revoke the grant, which is a separate and far more complex proceeding.

How much does it cost to lodge a probate caveat in NSW?

The Supreme Court filing fee as of 1 July 2025 is $54 for individuals and $109 for corporations. Fees are reviewed annually on 1 July. Legal fees for preparing and supporting the caveat are separate and depend on the complexity of the matter.

Can a probate caveat be used to make a family provision claim?

No. A caveat challenges whether the will is valid. A family provision claim under Chapter 3 of the Succession Act 2006 (NSW) accepts the will as valid and seeks a share or larger share of the estate. The two run on different procedural tracks, and a family provision claim cannot be filed until probate has been granted.

What evidence do I need before lodging a caveat?

You need credible evidence of an underlying validity issue, such as medical records relating to capacity, solicitor file notes on execution, or evidence of pressure on the will-maker. You also need to show you have a sufficient interest in the estate, usually as a beneficiary under the will, an earlier will, or under the intestacy rules.

What happens if my caveat is found to be improperly lodged?

The court can order the caveat to cease and may order you to pay the estate’s legal costs of defending it. This is one of the main reasons to obtain specialist legal advice before lodging. A caveat lodged for the right reasons, with the right evidence, is a powerful tool. A caveat lodged on speculation is a costly mistake.