Probate Law NSW

Caveat for an Incorrectly Executed Will

Applying for a caveatfor an incorrectly executed Will is possible. In New South Wales to be valid, a Will needs to be signed by the person making the Will in front of two witnesses. If you believe that a Will has been incorrectly executed, you need to act quickly to protect your position and your interest in a deceased Estate.  Wills that have been incorrectly executed, or altered are often referred to as “Informal Wills.”

In New South Wales it is possible for Informal Wills to be recognised by the Court, as a formal Will, if the Court is satisfied that the person intended the Informal Will to be treated as their Will. If the Court accepts an Informal Will then it is possible for the Executor or Executors named in the Will, to obtain a Grant of Probate. Once a Grant of Probate issues from the Court, the Executor can commence distributing the assets in the deceased Estate in accordance with the Informal Will.

To protect your interest in a deceased Estate it is possible to apply to the Court for a Caveat. The purpose of this type of Caveat is to prevent the Court from issuing a Grant of Probate over an Informal Will.  To be eligible to lodge a Caveat, you must have an interest in the deceased Estate or be an affected person in relation to the deceased Estate.

The Caveat will only last for six months and will give you time to challenge the Informal Will on the basis that it was not executed correctly and that the deceased did not intend the Informal Will to be recognised as their Will. The Court will then need to decide whether a Grant of Probate can issue for the Informal Will. If not, the Court may issue a Grant of Probate over an earlier Will made by the deceased or, if there is no other Will, ensure that the deceased’s Estate is distributed in accordance with the Intestacy Rules.

If you are affected by an incorrectly executed Will you need to seek expert legal advice as soon as possible, to ensure that the incorrectly executed Will is not recognised by the Court and the assets in the deceased Estate distributed in accordance with the incorrectly executed Will.

If you need advice on Caveats or Grant of Probate,  you need to seek legal advice from an expert Wills & Estates Lawyer at Sydney Probate Lawyers. We specialise in Probate Law and pride ourselves on our open and honest communication with clients.

Call Graeme Heckenberg at the Sydney Probate Lawyers on 9221 2779 for confidential, expert advice.