caveat on deceased estates

Caveat on Deceased estates

Caveat on Deceased estates

Can you lodge a caveat on a deceased’s property after probate has been granted?

The purpose of a property caveat is to prevent dealings with a property in dispute.  But it must be founded on legal grounds.

A person contesting the Will and seeking further provision from the estate through a Testators Family Maintenance Claim (TFM) does not have an automatic right to lodge a property caveat on any estate property. Lodgement of a caveat is a very serious issue and if lodged improperly, there will be consequences such as the court ordering costs against you.

Family provision claimants do not have a right to place such a caveat on any estate property unless there are truly exceptional circumstances that give rise to a caveat anyway. If a caveat is placed on the title improperly the court in due course can order legal costs to be paid by the caveator that lodged the caveat, to the landowner (deceased estate).

In 99% of contesting wills cases, these caveats are not permitted. Only a person who has an appropriate legal interest in the property has a right to lodge a property caveat against a deceased’s property.

When you can lodge a caveat on a deceased estate property

If you fall in any of these categories, you may have sufficient grounds to lodge a caveat:

    1. You have a loan outstanding in relation to the property which is in writing and signed and includes a charge over the property; or
    2. You had some sort of agreement with the deceased that the property will not be sold or mortgaged without your approval as you had a common law entitlement to the part of or all of the property after the deceased’s passing (subject to proof of evidence of course); or
    3. The deceased had agreed to you filing a caveat to protect your interest in the property and this is documented/evidenced.

When you cannot lodge a caveat on a deceased estate property

If you fall into this category, you most likely have insufficient grounds to lodge a caveat:

    1. You have been left out of the Will or received lesser than you think you should have and wish to make a family provision claim for further provision from the estate.
    2. The deceased owed you money but it was not documented.

If you can’t lodge a caveat in these circumstances, how do you prevent an estate property from being sold and the proceeds being dissipated before you have the chance to seek legal advice and make a claim for further provision from the estate?

You should immediately seek legal advice and based on the timeframes and facts of your case, the solicitor may write to the executor of the estate or his lawyer to seek an undertaking not to distribute the estate. If the executor or his lawyer refuses, your solicitor may advise you to make an application to the court for the sale proceeds to be frozen until the finalisation of your further provision claim.  Note that you cannot prevent the property from being sold but you can prevent the funds being distributed.   In Victoria, the time frame for this is 6 months. If you have not made a challenge to the Will by then you would need special leave to use the courts, otherwise, the executor is free to distribute under the terms of the will.

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