How to File a Caveat to Stop Probate in Manitoba

You may think a will is not valid, or that something was wrong when it was signed. If an executor has applied, or is about to apply, for probate, you may want to stop the grant before it is issued. In Manitoba, a caveat is the tool the court rules provide for that.

This article explains what a caveat is, how it holds up a grant, and what usually happens once the matter becomes contested. It is general information. Some details, such as timing and procedure, depend on the Rules and your facts, so confirm them with a lawyer before you act.

This article covers the law of Manitoba.

What a caveat is

Under The Court of King's Bench Surrogate Practice Act, a caveat may be filed against the grant of probate or letters of administration, or against other proceedings in an estate. It is filed with the registrar or a deputy registrar.

The prescribed form is Form 75A, headed "Let nothing be done" in the estate. The form is listed under Rule 75 of the Court of King's Bench Rules, and it lets the filer state the reason for the objection, such as lack of testamentary capacity or undue influence.

The wording of the form and the rules about how long a caveat stays in place depend on the current Rules. Check them with a lawyer or the court office rather than relying on an older source.

How a caveat holds up a grant

Unless the court orders otherwise, no grant issues until the application has been returned with the registrar's certificate that no other application exists. A caveat is how a filing gets in the way of that certificate.

A deputy registrar who receives a caveat must send a copy to the registrar. When an application comes in from a deputy registrar's office, the registrar must notify that office of any related caveat. This is how a caveat filed in one office can still be found when an application arrives from another.

If applications are made in more than one judicial centre, the deputy registrars stay the proceedings and the court decides summarily which one goes ahead. The court may also order costs against an applicant.

What the judge must be satisfied of

To grant probate, the judge must be satisfied that the will is valid and properly executed, including that the testator appeared to be of sound mind and of age. Evidence of at least one witness is generally required.

If the witnesses are dead, incompetent or cannot be found, the judge may accept other satisfactory evidence. A will wholly in the testator's handwriting needs evidence of the handwriting and signature, that it was entirely handwritten, and of capacity and age at signing.

Formal defects can also be raised. A will must be in writing and signed at its end by the testator, or by another person in the testator's presence and at their direction. The testator must sign or acknowledge the signature before two or more witnesses present at the same time, and the witnesses must sign in the testator's presence. A failure to meet these formalities is a ground for challenge. There are exceptions, such as a holograph will, which is valid without witnesses if wholly handwritten and signed at its end. Members of the armed forces on active service and mariners at sea may make a will by signed writing without witnesses. Remote witnessing is also allowed for people authorized by regulation, under the regulation's procedure. The court can also give effect to a document that does not meet the formalities if it shows the deceased's intentions.

What happens once it is contested

In proceedings to prove a will in solemn form, revoke probate, or any other contentious matter, people with an interest in the affected property may be summoned and may be permitted to become parties, subject to the rules and the court's discretion.

At the first appearance on a contested probate application, or at any time after, a judge may add or remove parties and give directions considered necessary or advisable. These may include ordering a pre-trial conference, after which the application is treated as an action. This is Rule 75.05 as replaced by M.R. 38/2023, in force 1 July 2023.

While a suit over a will's validity, or over obtaining, recalling or revoking a grant, is pending, the court may appoint an administrator. That administrator cannot distribute the estate and acts under the court's direction.

• Interested persons may be summoned or added as parties.
• A judge may give directions, including a pre-trial conference.
• A court-appointed administrator cannot distribute the estate.

A dependants relief claim is different

A caveat objects to the grant. A claim under The Dependants Relief Act is a different thing. It asks the court to order reasonable provision for a dependant in financial need, even if the will is valid.

That application has its own limit of up to six months from the grant of probate or letters of administration, and generally no application may be made after that period ends. The court may allow a later application against the undistributed estate in limited cases, such as when the dependant did not learn of the death until after the period ended. A caveat does not replace this claim, so ask a lawyer about both early.

What to do next

• Write down why you doubt the will, and who was involved when it was signed.
• Gather the will, any earlier wills, and information on the deceased's health around signing.
• Note the names of the witnesses and the date you learned of the death.
• Find out whether anyone has already applied for a grant.
• Speak with a lawyer about whether a caveat fits your situation and the timing involved.

Grounds for challenging a will, such as capacity or undue influence, are developed through court decisions, and the outcome depends on the evidence. A lawyer can help you assess that before you file.

Frequently asked questions