How to File a Caveat to Stop a Probate Grant in New Brunswick

If you are worried about a will, you may fear that the Probate Court will issue a grant before you have a chance to raise your concerns. A caveat is the tool the Probate Rules provide to make sure you get notice first. It does not decide whether the will is valid. It gives you a seat at the table.

This article explains in plain terms where a caveat is lodged, how long it lasts, the deadline that catches people out, the fees involved and what usually follows. Every estate is different, so use this as a map and speak with a lawyer about your own facts.

This article covers the law of New Brunswick.

What a caveat is and why people use one

A caveat is a formal notice lodged against a grant, such as letters probate. It tells the Probate Court that you want to be heard before the grant is issued. Letters probate officially recognize an executor's authority, which is why a third party dealing with land or assets will usually ask for proof of it.

The key protection is notice. Once a caveat is lodged, no proceedings may be taken on the application without notice to the caveator. A caveat is not a finding that anything is wrong with the will. Simply being disappointed or left out is not itself a ground to set a will aside, so a caveat is best used when you have a real concern, such as doubts about capacity, undue influence, fraud or whether the person knew and approved the contents.

Where and how to lodge it

A caveat against a grant may be lodged with the Registrar or with a probate office clerk. Applications for a grant are made at the probate office for the judicial district where the deceased lived or where their property was located, so that is the practical place to start asking questions.

The Court publishes an Index of Probate Forms and its procedure is set out in Regulation 84-9 (the Probate Rules). Payment must accompany documents filed, and can be made by certified cheque, money order, debit card, credit card or cash in person, payable to the Minister of Finance for the Province of New Brunswick. Ask the clerk to confirm the current form and process before you file.

How long a caveat lasts and the ten-day deadline

A caveat stays in force for six months after it is lodged, unless it is withdrawn, vacated, or a notice of intent to contest is filed. Do not treat it as open-ended protection.

The Rules refer to a warning that a caveator receives, and the time to respond is short. You must file a notice of intent to contest in Form 3D within ten days of receiving that warning. This is a short window, so read any court paper you receive the day it arrives.

• Note the date you lodged the caveat and mark six months ahead.
• Keep every warning or notice and record the day you received it.
• Plan to file Form 3D within ten days of receiving a warning.
• Contact a lawyer early if you intend to contest the will.

Fees and what happens next

Once a dispute is under way, the Court may make interested persons parties to proof of the will in solemn form, which means the will must be proved formally, or to revocation proceedings. A party served with a citation who does not file a notice of intent to contest is not entitled to notice of further proceedings. In other words, staying silent can cost you your place in the process.

While the validity of a will or a revocation proceeding is pending, the Court may appoint an interim administrator, who cannot distribute the residue of the estate. This can keep assets in place while the dispute is sorted out. The detailed steps of any later court litigation depend heavily on the facts, so get legal advice on that stage.

Other deadlines that run from the date of death

A caveat does not stop other clocks. A claim for support from the estate under the Provision for Dependants Act cannot be made later than four months after the death, although a judge may allow a later application for any part of the estate still undistributed if just. A surviving married spouse who wants marital property divided equally must apply within four months of death, extendable in limited cases.

These periods run from the death, not from the date of probate. How these periods fit with a caveat depends on your situation, so speak with a lawyer promptly if either claim might apply to you.

What to do next

• Write down the date of death and calculate four months from it.
• Gather what you know about the will, who made it and why you are concerned.
• Contact the probate office for the judicial district to ask about lodging a caveat.
• Lodge the caveat and keep a copy with proof of the date.
• Diarize six months and the ten-day Form 3D deadline.
• Book a conversation with a lawyer before you file anything contested.

Frequently asked questions