National Crime What is a caveat and when should you lodge one?
A caveat is a notice to the Supreme Court that you object to a grant of probate or administration being made without your knowledge. It does not by itself challenge the will — it preserves the position so that a challenge can be investigated and, if warranted, commenced. A caveat prevents the Registrar from sealing a grant until the caveator has been given notice and an opportunity to be heard.
You should consider lodging a caveat if:
- You have grounds to suspect the will is invalid (lack of capacity, undue influence, fraud, etc.)
- You believe an earlier will should be admitted to probate instead
- You are concerned about the executor's suitability or conduct
- You need time to investigate potential grounds for challenge before probate is granted
- The executor has indicated they intend to apply for probate and you have unresolved concerns
How to lodge a caveat in NSW
Under Part 78 of the Supreme Court Rules 1970 (NSW), a caveat is lodged with the Supreme Court Probate Registry. The caveat must set out:
- The full name of the deceased and their date of death
- The caveator's name, address, and the nature of their interest in the estate
- The grounds on which the caveator objects to the grant
A filing fee is payable. The caveat remains in force for six months from the date of filing and may be renewed for further six-month periods. A caveat should be prepared with care — while it does not require the same level of detail as a statement of claim, the grounds should be stated clearly and honestly. Lodging a caveat without proper grounds is a serious matter and may expose the caveator to adverse costs orders.
Timing is critical
A caveat must be lodged before the grant of probate or administration is sealed. Once the grant is sealed, a caveat can no longer be lodged. If you have concerns about a will, do not wait — lodge a caveat immediately while investigations are undertaken. A caveat can be withdrawn at any time if grounds are not found, but it cannot be lodged retrospectively. Act now →
Responding to a caveat: warnings and appearances
If a caveat has been lodged against a grant you are seeking as executor, you have several options:
Issue a Warning
The executor or propounder of the will may issue a warning to the caveator, requiring them to enter an appearance within a specified time (usually 14 days). If the caveator fails to enter an appearance, the caveat lapses and the grant may proceed. This is the most common response to a caveat.
Negotiate
The executor may engage with the caveator to understand their concerns and, where possible, resolve them. A caveator who is satisfied their concerns are unfounded may withdraw the caveat voluntarily. In some cases, an agreement can be reached that allows the grant to proceed on certain conditions.
Apply to Set Aside
If the caveat is manifestly without foundation, the executor may apply to the Court to have it set aside. The Court will consider whether the caveator has a proper interest and whether the grounds stated are arguable. Costs may be awarded against a caveator who cannot justify their caveat.
Costs risks of lodging a caveat
Caveats are serious procedural instruments. Lodging a caveat without proper grounds can have significant costs consequences. If a caveator cannot justify the caveat when warned, or if the Court finds the caveat was lodged vexatiously or without reasonable cause, the caveator may be ordered to pay the costs of the executor and other parties — potentially on an indemnity basis. Conversely, an executor who unreasonably resists a properly grounded caveat may also face adverse costs orders.
For this reason, caveats should only be lodged after obtaining legal advice. A lawyer can assess whether the grounds are sufficient to justify a caveat and can assist in drafting the caveat in proper form for filing with the Supreme Court Probate Registry.
The legal framework for NSW caveats
The caveat procedure in NSW is governed by Part 78 of the Supreme Court Rules 1970 (NSW), supplemented by the Probate and Administration Act 1898 and the inherent jurisdiction of the Supreme Court. Understanding the legal framework is essential to lodging or responding to a caveat effectively.
Part 78 — Supreme Court Rules 1970
Part 78 is the primary procedural code for probate and administration proceedings in NSW. Key provisions relevant to caveats include:
- Rule 78.64: Any person may lodge a caveat with the Registrar requiring that no grant of probate or administration be sealed without notice to the caveator. The caveat must state the caveator's interest and the grounds of objection.
- Rule 78.65: A caveat remains in force for six months from the date of filing, unless it is withdrawn or set aside earlier. It may be renewed for further six-month periods by filing a fresh caveat before expiry.
- Rule 78.66: A person wishing to proceed with a grant despite a caveat may issue a warning to the caveator, requiring them to enter an appearance within a specified time (usually 14 days) or show cause why the grant should not be made.
- Rule 78.67: If the caveator does not enter an appearance within the time specified in the warning, the caveat lapses and the grant may proceed.
- Rule 78.68: If the caveator enters an appearance, the proceedings for a grant are treated as contentious and proceed accordingly — typically by statement of claim in the Probate List of the Equity Division.
Probate and Administration Act 1898 (NSW)
Sections 40J–40L of the Probate and Administration Act complement the Part 78 rules. They provide for the court's power to determine contested probate matters, to make declarations about the validity of wills, and to deal with costs in probate litigation. Section 40M allows the court to make orders for the inspection of testamentary documents, which may be relevant where a caveator needs access to a will to investigate grounds for challenge.
Inherent jurisdiction of the Supreme Court
In addition to the statutory framework, the Supreme Court has inherent jurisdiction to control its own process and to prevent abuse of the caveat procedure. This means the court can set aside a caveat that is an abuse of process, even if it has been lodged in accordance with the formal requirements of Part 78. The court may also impose conditions on a caveator — for example, requiring them to commence proceedings by a specified date — as a condition of allowing the caveat to remain in force.
Key cases on caveats in NSW
- Re Estate of Hodges (1988) 1 Qd R 196: Though a Queensland decision, frequently cited in NSW. Considered the grounds required to justify a caveat and the circumstances in which a caveat should be removed.
- Estate of Crane [2005] NSWSC 110: Considered the costs consequences of lodging a caveat without sufficient grounds and the court's power to order indemnity costs against a caveator who cannot justify the caveat.
- Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244: The NSW Court of Appeal considered the standard of evidence required to maintain a caveat and the interaction between caveats and applications for family provision.
Caveats vs citations: understanding the difference
Caveats and citations are distinct procedural instruments that serve different purposes in the probate context. Confusing them can lead to procedural error:
Caveat
A caveat prevents a grant from being sealed without notice to the caveator. It is used by a person who objects to the grant — for example, because they challenge the validity of the will or the executor's suitability. Lodged under Part 78 of the Supreme Court Rules. The caveator's interest is in preventing the grant.
Citation
A citation compels a person to take a step in relation to a grant. Common types include: a citation to take probate (directed to the named executor requiring them to apply for probate or renounce); a citation to propound a will (directed to a person with custody of a will requiring them to produce it); and a citation to see proceedings (directing an interested person to appear if they wish to be heard). A citation is an instrument of compulsion, not objection.
In practice, a beneficiary who is concerned that the executor is delaying may apply for a citation to take probate — compelling the executor to either apply within a specified time or renounce, allowing another person to apply. This is different from lodging a caveat, which would prevent probate altogether. Understanding which instrument is appropriate for your circumstances requires legal advice.
Interim administration and the effect of a caveat on estate management
When a caveat is lodged, it prevents the grant from being sealed — but it does not, by itself, prevent the interim administration of the estate. However, without a grant, the executor (or proposed administrator) cannot deal with estate assets in the ordinary way. Key practical effects include:
- Bank accounts are frozen. Financial institutions will generally not release estate funds without a grant of probate or administration. While a caveat is in place, the grant cannot be made and funds remain inaccessible — potentially causing hardship to beneficiaries and preventing the payment of estate debts.
- Property cannot be sold or transferred. Real property, shares, and other assets requiring formal transfer cannot be dealt with until a grant is obtained. A caveat therefore prevents the realisation of estate assets.
- Limited interim steps are possible. The executor may take protective steps — securing property, maintaining insurance, arranging the funeral — but cannot distribute assets or transact on estate accounts.
- An administrator pendente lite may be appointed. Where a caveat results in protracted delay, an interested person may apply to the Court for the appointment of an administrator pendente lite — a limited administrator appointed to preserve and manage the estate during the litigation. This is an exceptional remedy, granted only where the estate (or its assets) are at risk during the delay.
- Pressure to resolve the caveat. Because a caveat freezes the administration, there is commercial and personal pressure on both sides to resolve it — either by the caveator commencing proceedings and prosecuting them diligently, or by the caveator withdrawing the caveat. The Court is alert to caveats used to extract settlements through delay and will not tolerate them.
If you are a beneficiary who is not a party to the caveat dispute, and the caveat is causing hardship (for example, because you depend on estate funds for living expenses), you may apply to the Court for orders to address your position — including orders for interim provision from the estate. The Court has power to make such orders in appropriate cases, even before a formal family provision application is determined.
Common mistakes with caveats
Caveats are a powerful but dangerous tool. Mistakes — by caveators and by executors — can have serious consequences, including significant costs orders.
Lodging a caveat without proper grounds
This is the single most common and costly mistake. A person lodges a caveat because they are unhappy with a will — but unhappiness is not a legal ground for objection. The caveat must state grounds recognised by law, such as lack of testamentary capacity, undue influence, fraud, or want of knowledge and approval. Lodging a caveat based on suspicion alone, without proper legal grounds, exposes the caveator to indemnity costs orders — meaning they may have to pay all the executor's legal costs, potentially tens of thousands of dollars.
Waiting until probate has been granted
A caveat must be lodged before the grant is sealed. Once probate is granted, it is too late — the caveat cannot be lodged retrospectively. Many people delay because they are unsure, they want to gather more evidence, or they do not want to start a conflict. But a caveat can be withdrawn at any time — so there is no downside to lodging one while investigations are undertaken, provided proper grounds exist. The real risk is not lodging one at all.
Ignoring a warning to the caveat
If you are a caveator and you receive a warning from the executor, you must enter an appearance within the specified time (usually 14 days). If you ignore the warning, the caveat lapses automatically and probate proceeds. You then lose your procedural protection. Some caveators misunderstand the warning — they think they have already lodged their objection and do not need to do anything more. This is wrong. A warning requires a positive response.
Assuming a caveat challenges the will
A caveat does not challenge the will — it only prevents probate from being granted without notice. To actually challenge the will, the caveator must commence proceedings after entering an appearance. A caveator who lodges a caveat and then does nothing more, assuming the caveat itself will prevent probate indefinitely, is mistaken. A caveat buys time — it does not resolve the dispute.
Failing to seek legal advice before lodging
Given the costs risks, lodging a caveat without legal advice is dangerous. A lawyer can assess whether there are proper grounds, draft the caveat in the correct form, advise on the strategic implications, and prepare for what happens when a warning is issued. The modest cost of advice before lodging a caveat can avoid substantial costs consequences later.
Using a caveat as a delaying tactic
Some people lodge a caveat purely to delay the administration — perhaps because they are negotiating with the executor or because they want to pressure a settlement. This is not a legitimate use of the caveat procedure. If the court finds the caveat was lodged for an improper purpose, the caveator faces indemnity costs orders. A caveat is a protective measure, not a negotiation tool.
Withdrawing a caveat — procedure, timing and strategy
A caveat may be withdrawn at any time by filing a notice of withdrawal with the Supreme Court Probate Registry. Withdrawal is common — it occurs when the caveator's investigations reveal insufficient grounds, when the caveator and executor reach an agreement, or when the caveator decides not to proceed with a challenge. However, withdrawal is not without strategic considerations:
- Voluntary withdrawal. If the caveator is satisfied their concerns are not well-founded, or if they cannot afford to litigate, withdrawal is the prudent course. It avoids costs consequences and allows the administration to proceed. The filing fee for a notice of withdrawal is minimal.
- Negotiated withdrawal. In some cases, the caveator and executor negotiate terms for withdrawal — for example, the executor agreeing to provide the caveator with certain information, to preserve evidence, or to give notice before distributing the estate. Such agreements should be documented in writing, preferably through solicitors, to avoid later disputes about what was agreed.
- Withdrawal after entering an appearance. If the caveator has entered an appearance and proceedings have commenced, withdrawal of the caveat does not automatically end the proceedings. The caveator should also discontinue the proceedings, and costs considerations will apply. A party who commences proceedings and then discontinues may be ordered to pay the other side's costs up to the date of discontinuance.
- Risk of costs order on withdrawal. While withdrawal is generally less costly than proceeding to a hearing and losing, the executor may still seek costs against the caveator for the expense incurred in responding to the caveat. The caveator should seek legal advice on the costs implications before withdrawing. In some cases, it may be appropriate to negotiate a costs outcome as part of the withdrawal.
- Withdrawal does not bar a future caveat — but caution is required. Withdrawing a caveat does not prevent the caveator from lodging another caveat later if new grounds emerge. However, repeated lodging and withdrawal without proper cause may attract adverse costs orders and scrutiny from the Court. It may also suggest the caveator is using the process improperly.
A caveator who is considering withdrawal should obtain legal advice on the costs implications and on whether any conditions should be sought from the executor before the caveat is withdrawn.
Caveats and family provision claims — interaction with the 12-month limitation period
A caveat against a grant of probate has important implications for family provision claims under Chapter 3 of the Succession Act 2006 (NSW). Understanding the interaction between caveats and the 12-month family provision limitation period is critical:
- A caveat does not stop the 12-month clock. Lodging a caveat does not extend or suspend the 12-month limitation period for bringing a family provision application under s 58 of the Succession Act. The 12 months runs from the date of death, regardless of whether a caveat is in place. A caveator who is considering a family provision claim must ensure the claim is filed within 12 months of death — even if the caveat is still in force and probate has not yet been granted.
- A caveat for a will challenge does not preserve a family provision claim. A caveat lodged on grounds challenging the validity of the will (such as undue influence or lack of capacity) does not operate as a family provision application. If the caveator also wishes to make a family provision claim (as an alternative to the will challenge), they must file a separate application within the 12-month period.
- Commencing a family provision claim while a caveat is in place. It is possible — and often advisable — to file a family provision application while a caveat is in force. The existence of the caveat does not prevent the family provision proceedings from being commenced and progressed. The family provision application will be determined when the caveat is resolved and a grant is made (or the will is found invalid and the estate passes on intestacy).
- The executor's dilemma. Where a caveat and a family provision claim coexist, the executor is in a difficult position. They cannot obtain probate while the caveat is in place, but the 12-month period for family provision is running. The executor should seek legal advice on how to manage the intersecting timelines — and in particular, on whether to issue a warning to the caveator to force the issue.
What to do now — practical next steps
If you are considering lodging a caveat
Seek Immediate Legal Advice
Contact a probate litigation lawyer before lodging anything. Explain your concerns. The lawyer will assess whether you have proper legal grounds for a caveat and advise on the costs risks. Do not lodge a caveat yourself without advice — the risks are too high.
Gather Available Evidence
Collect any evidence supporting your grounds — earlier wills, correspondence, medical records, witness statements. While the caveat itself does not require detailed evidence, you will need to justify it if warned and in any subsequent proceedings.
Lodge the Caveat Promptly
If your lawyer advises that grounds exist, lodge the caveat immediately. The filing fee is modest. The caveat can be withdrawn at any time if investigations later reveal insufficient grounds.
Prepare for a Warning
Assume the executor will issue a warning. Work with your lawyer to prepare your case. You have six months while the caveat is in force — use this time productively to investigate and, if warranted, commence proceedings.
Commence Proceedings or Withdraw
A caveat is temporary. Before it lapses (or before a warning deadline), you must either commence proceedings challenging the will or withdraw the caveat. Do not simply let the caveat lapse — this may have costs consequences.
If you are an executor facing a caveat
Do Not Ignore It
A caveat prevents probate from being sealed. You cannot simply proceed as if it does not exist. Ignoring it may result in an invalid grant and personal liability.
Assess the Caveat
Review the caveat with your solicitor. What grounds are stated? Does the caveator have a proper interest? Are the grounds arguable? Your response strategy depends on the answers to these questions.
Consider Negotiation
In some cases, engaging with the caveator to understand and address their concerns may result in voluntary withdrawal — saving time and costs for everyone. This is often more productive than immediately issuing a warning.
Issue a Warning (if Appropriate)
If negotiation fails or is inappropriate, issue a warning requiring the caveator to enter an appearance within 14 days. This puts the caveator to proof and forces the issue.
Apply to Set Aside (if Groundless)
If the caveat is manifestly without foundation, apply to the court to have it set aside. You may seek costs against the caveator on an indemnity basis.
Need to lodge or respond to a caveat in NSW?
Whether you need to protect your position by lodging a caveat or you are an executor facing a caveat against your grant, early legal advice is essential. We can assess the grounds, advise on strategy, and assist with the procedural steps.
Related services
Caveats rarely exist in isolation. They are typically the first step in a broader challenge or dispute. These related areas may also be relevant:
NSW Probate Timeline
Understanding key deadlines — including when a caveat must be lodged relative to the probate application process — is essential to protecting your position.
Explore probate timeline →Challenging a Will in NSW
A caveat is the first step in a will challenge. Once the caveat is lodged, the substantive challenge must be commenced through proceedings in the Probate List.
Explore will challenges →NSW Undue Influence
Undue influence is one of the most common grounds stated in caveats. Understanding the legal test and evidence required is essential before lodging.
Explore undue influence →NSW Beneficiary Rights
If you are a beneficiary concerned about the administration of an estate, a caveat may be one of several remedies available to you.
Explore beneficiary rights →NSW Executor Duties
If you are an executor, understanding your duties helps you respond appropriately to a caveat and manage the administration while the dispute is resolved.
Explore executor duties →Urgent Estate Protection
Where assets are at immediate risk — a caveat combined with urgent injunctive relief can preserve the estate pending a full challenge.
Explore urgent protection →Frequently asked questions — NSW caveats
A caveat lodged with the NSW Supreme Court Probate Registry remains in force for six months from the date of filing. It can be renewed for further six-month periods by filing a fresh caveat before the existing one expires. A caveat will lapse earlier if: the caveator withdraws it; the caveator fails to enter an appearance after being warned; or the Court orders it to be set aside. A caveator should use the six-month period to investigate grounds, gather evidence, and commence proceedings if warranted. Simply renewing a caveat indefinitely without taking substantive steps may lead to adverse costs orders.
If you are a caveator and you receive a warning from the executor or propounder of the will, you must enter an appearance within the time specified (usually 14 days). If you do not, the caveat will lapse automatically and the grant of probate or administration may proceed without further notice to you. This is why caveats should not be lodged as a delaying tactic — if you are not prepared to enter an appearance and justify the caveat when warned, it will not protect your position. Entering an appearance is a formal step that signals your intention to maintain the objection.
While it is possible to lodge a caveat without a lawyer, it is strongly recommended that you obtain legal advice before doing so. The grounds for the caveat must be stated with sufficient clarity and must be capable of being justified. Lodging a caveat without proper grounds can expose you to significant costs orders. A lawyer can assess whether your grounds are sufficient, draft the caveat in proper form, and advise on the strategic implications — including what happens when you receive a warning. The relatively modest cost of advice before lodging a caveat can avoid substantial costs consequences later.
The caveat must state the nature of the caveator's interest in the estate and the grounds on which they object to the grant. The grounds must be legal grounds recognised by the court — not simply unhappiness with the will. Recognised grounds include: lack of testamentary capacity, undue influence, fraud or forgery, want of knowledge and approval, the existence of a later or earlier will that should be admitted to probate, the unsuitability of the named executor, or the caveator's status as a person entitled on intestacy. The grounds do not need to be proved in full at the time the caveat is lodged, but they must be capable of being supported by evidence if the caveat is challenged.
The Supreme Court filing fee for lodging a caveat is relatively modest (a few hundred dollars). However, the real cost is not the filing fee — it is the legal advice required to ensure the caveat has proper grounds, and the potential costs exposure if the caveat is found to have been lodged without sufficient grounds. If a caveator cannot justify their caveat and it is set aside, they may be ordered to pay the executor's costs on an indemnity basis — which can run to tens of thousands of dollars. The cost of obtaining legal advice before lodging is a fraction of the cost of getting it wrong. If you are an executor responding to a caveat, your legal costs will depend on whether the caveator enters an appearance and whether the matter proceeds to a hearing.
Yes. A caveator may withdraw a caveat at any time by filing a notice of withdrawal with the Supreme Court Probate Registry. This is common where the caveator's investigations reveal insufficient grounds, or where the caveator and executor reach an agreement. Withdrawing a caveat does not prevent the caveator from lodging another caveat later if new grounds emerge — though repeated lodging and withdrawal without proper cause may attract adverse costs orders and scrutiny from the court. If you are considering withdrawing a caveat, seek legal advice on the implications, particularly regarding costs.
Entering an appearance signals that the caveator intends to maintain their objection. The proceedings then become contentious. The caveator must commence proceedings — typically by filing a statement of claim in the Probate List of the Equity Division of the Supreme Court — pleading the grounds for challenging the will. The matter then proceeds through the ordinary litigation process: pleadings, evidence, potentially mediation, and if not resolved, a hearing. The caveator should not assume that entering an appearance is the end of the process — it is the beginning. From this point, the matter must be actively prosecuted or it will be dismissed for want of prosecution.
A caveat prevents a grant from being sealed — it is an instrument of objection, used by a person who challenges the validity of the will or opposes the executor. A citation compels a person to take a step — such as a citation to take probate, which compels the named executor to either apply for probate or renounce within a specified time. Citations are used by beneficiaries who want the executor to get on with the administration, not by persons who challenge the will. If you are unhappy about delay in the administration, a citation (not a caveat) is the appropriate procedural instrument. If you challenge the will itself, a caveat is the appropriate instrument. Using the wrong one can lead to costs consequences and procedural complications.
No. A caveat does not prevent a family provision claim from being commenced or determined. The 12-month limitation period under s 58 of the Succession Act 2006 (NSW) continues to run regardless of whether a caveat is in place. If you are a caveator who may also have a family provision claim, you should file the family provision application within 12 months of the date of death — even if the caveat has not yet been resolved. The family provision application can proceed while the caveat dispute is ongoing. If you are a caveator and the 12-month deadline is approaching, seek legal advice immediately — you may need to file a protective family provision application even if your primary claim is a will challenge.
In limited circumstances, yes. The Court may appoint an administrator pendente lite — a temporary administrator appointed to manage the estate during litigation, including while a caveat is in force and probate cannot be granted. This is an exceptional remedy. The Court will only make such an appointment where there is a genuine need — for example, where estate assets are at risk, a business must continue to operate, or urgent steps must be taken to preserve the estate. The administrator pendente lite has limited powers, typically restricted to preservation and management, and cannot distribute the estate. The appointment continues until the caveat is resolved and a permanent grant can be made. Applications for an administrator pendente lite should be made promptly if the need arises, as the Court will not make the appointment lightly.