Caveat on probate workflow
A caveat stops a grant being made ex parte while the caveator challenges validity — testamentary capacity, undue influence, execution, or entitlement. The rules are short and time-critical. Get a caveat wrong and it is removed; get the timing wrong on a warning and the caveat lapses.
This is an 8-step workflow for lodging or responding to a caveat on probate or letters of administration under Part 78 of the Supreme Court Rules 1970 (NSW) and equivalent state rules.
Before you start
- Signed costs agreement and conflict check
- Instructions on the grounds for challenge
- Copy of any will, medical records relevant to capacity, or entitlement evidence
- Details of applicant for grant and proposed grantee
The workflow
Assess grounds for caveat
Assess the grounds — testamentary capacity, knowledge and approval, undue influence, fraud, revocation, improper execution, or entitlement dispute — against the available evidence.
File caveat with Probate Registry
File a caveat in the approved form with the NSW Supreme Court Probate Registry, including the address for service. The caveat lasts six months unless renewed or removed.
Notify the proposed executor or administrator
Notify the proposed executor or administrator of the caveat. Open a privileged communication channel on evidence and grounds while preserving without prejudice settlement options.
Respond to a warning
If the applicant for the grant serves a warning, the caveator must enter an appearance within the prescribed time (usually 8 days in NSW) stating the grounds. Missing the time limit lapses the caveat.
Prepare the substantive evidence
Prepare affidavits addressing capacity (treating doctor, GP notes, specialist reports), knowledge and approval (solicitor's file, attestation), and any undue influence factual matrix.
Negotiate or mediate
Most probate caveats settle with agreed orders — consent to grant with an agreed distribution, or withdrawal of caveat on compromise. Mediate through the Supreme Court mediation programme where appropriate.
Prepare summons and probate suit
If unresolved, prepare the probate suit — summons for solemn form grant, affidavits, and interrogatories. Address standing, capacity, and alternative claims (Chapter 3 family provision) if relevant.
Attend hearing and manage grant outcome
Attend hearing in the Supreme Court Equity (Probate) List. On outcome, implement — grant in solemn form, refusal, or limited grant pending trial of a discrete issue.
What you will have at the end
Either a negotiated resolution with agreed grant and distribution, or a Supreme Court determination on validity, entitlement, or the proper form of grant.
Common issues
- Caveat lodged without a reasonable basis, inviting costs consequences
- Appearance to a warning missed, lapsing the caveat
- Family provision claim confused with a validity challenge
- Insufficient medical evidence to ground a capacity challenge
- Solicitor's file not requested under Grey v Grey principles
Run this workflow on a real matter
Quillio assesses grounds against the evidence, drafts the caveat and appearance, and prepares the capacity affidavit. See /practice-areas/wills-estates-lawyers or start a free trial at /free-trial.
General guide only — not legal advice. Probate caveats are time-critical and costs-sensitive; obtain senior review before lodging.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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