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Probate Caveat - Injunctions - Disputed Will Solicitors - Australia Law
A person who wants to receive notification before a proposed executor is issued a Grant of Probate can submit an application for a probate caveat. This individual is then known as the "caveator" and will receive time limited notice that the proposed executor intends to obtain a Grant of Probate which gives the probate caveators solicitors the opportunity to begin legal proceedings to object to the issue of the anticipated grant of probate.
One of the most fertile areas for lawyers and Solicitors relates to challenging wills or disputing or contesting probate. Legal action for a will dispute can effectively be taken by solicitors immediately after death to protect potential beneficiaries by the issue of a probate caveat and after the issue of a grant of probate by the use of injunctions on an emergency basis. In addition normal court action for a will dispute can be started on notice by the issue of proceedings against executors or administrators if their conduct falls below the requisite standard and in addition an application to the court can be made by a solicitor to remove and replace executors who are inefficient or dishonest.
The word caveat is Latin and is effectively a warning. A caveat in a will dispute is obtained by filing a document at the Probate Registry of the Supreme Court which will result in notice being given to the person who has filed the caveat, if certain actions are being taken by a third party, enabling the person who filed the caveat to take legal action if that person thinks that it may be appropriate. The main intention of a will caveat is to prevent the issue of a grant of probate without notice being given to the person who took out the caveat known as the caveator. The effect of this is in a will dispute is that the caveator receives both notice and extra time in order to instruct a solicitor to start legal action to protect their position in the event of a probate application that they consider to unfair. Once a probate caveat has become effective it has a limited life and to be effective a caveat on a will must be filed at least a day before the grant of probate is issued.
An injunction is a court order which instructs someone to do something or to refrain from doing something. Failure to abide by the terms of an injunction is a contempt of court punishable by a fine or imprisonment. An injunction is an emergency measure often granted on an ex-party basis meaning that the person against whom an injunction is issued is not present, nor have they been notified of legal proceedings, at the time the application for the injunction is made. In these cases the court will set time aside for a full hearing in order that the absent party can make representations to the court if necessary. Within the context of a will dispute, injunctions are often obtained to prevent executors or administrators from disposing of assets at a perceived undervalue or on a fraudulent basis or to stop the distribution of assets if there appears to be a discrepancy within the will.
In order to successfully file a probate caveat, certain requirements must be met. One of the most important requirements is that the caveator file the probate caveat before the Grant of Probate is issued. Once granted, a caveat has limited life and in order to remain in effect must be renewed from time to time. Caveators should take special care to ensure that all of the information included on the application is accurate or they may miss the opportunity to issue a caveat before the issue of the Grant of Probate.
Injunction or Caveat?
A solicitor filing a probate caveat in a case of contentious probate is not always the most effective way to dispute a will. In some cases, the better approach is to wait until the Grant of Probate has been issued and then bring a legal action against the estate. One type of legal action that can be brought by a solicitor is an injunction. An injunction is an order from a court demanding that the person subject to the injunction takes or does not take specific actions. For example, the injunction might forbid the executor from distributing the assets of the estate.
Breach of an Injunction
Injunctions are an equitable remedy that can be very effective in certain cases of contentious probate. There are serious consequences for breaching an injunction. A person found to be in violation of an injunction faces civil liability and may face criminal charges for contempt of court.
Contentious & Non Contentious Solicitors
Solicitors tend to take one of two paths with their legal careers. They either do courtroom work or they don't. This dichotomy is particularly notable within the field of wills and probate law. The vast majority of wills and probate solicitors have little to no courtroom experience. Most of their solicitors work is done in their office and involves drafting and executing documents. But what happens if the probate process turns contentious? What if a dispute over the validity of a will goes to court?
Within many solicitors firms, the solution is to pass the case along to their litigation department. It may sound like a reasonable solution, but what has really occurred is a trade-off. The client is forced to sacrifice knowledge of wills and probate law for courtroom experience. A litigator's typical workload relates to cases of business disputes and personal injury claims. Few litigation solicitors will have any significant experience handling probate cases.
We believe that a client should not have to make this choice. Our solicitors offer a highly specialised service - in-depth knowledge of wills and probate law with the litigation experience necessary to handle contentious cases. Our solicitors recognise that, unfortunately, all too many wills and probate cases turn contentious. In order to provide the best legal representation, a wills and probate solicitor must have solid experience handling cases both inside and outside of the courtroom.
Solicitors Legal Advice
Contact us today. We can provide you with free initial legal advice about your case and all matters related to wills and probate. The consultation is completely without charge and confidential, and speaking with one of our solicitors does not obligate you to use our services.
If you are concerned that a third parties application for probate may be inappropriate or that assets are being misappropriated or that an executor is inadequate or dishonest we may be able to assist you. Our specialist probate solicitors deal with challenging disputed and contested wills and will take legal action to protect your financial position if necessary. Our probate solicitors offer free advice on legal action to resolve a will dispute with no further obligation. Just complete and send the contact form or email our offices or use the helpline to speak to an expert lawyer.HELPLINE: ☎ 1800 455 886