How to File a Caveat to Stop Probate of a Will in New Brunswick

You may think a will is not valid, and you may be worried that the Probate Court of New Brunswick will grant Letters Probate before anyone hears your concerns. A caveat is the tool the Probate Rules provide to give you a voice before that happens.

This article explains in plain terms what a caveat is, where it is lodged, how long it lasts, what you must do if you receive a warning, and what grounds can really support a challenge. Every estate is different, so a lawyer can confirm how these steps apply to you.

This article covers the law of New Brunswick.

What a caveat is and where you lodge it

A caveat is a formal notice against a grant. Its purpose is to stop the Court from moving ahead on an application for Letters Probate without telling you first. Letters Probate are granted on a will and officially recognize the executor's authority.

A caveat against a grant may be lodged with the Registrar or with a probate office clerk. Once it is in place, no proceedings may be taken on the application without notice to the caveator.

How long a caveat lasts and the 10-day deadline

A caveat remains in force six months after it is lodged, unless it is withdrawn, vacated, or a notice of intent to contest is filed.

The deadline that matters most is this one: if you receive a warning, you must file a notice of intent to contest in Form 3D within ten days of receiving it. Treat that date as firm and get advice quickly if a warning arrives.

• Lodge the caveat with the Registrar or a probate office clerk.
• Expect notice of any further steps on the application.
• Watch for a warning and diarize the ten days from the day you receive it.
• File Form 3D within that time if you want to keep contesting.

Fees and what happens next

A caveat, or a notice of intent to contest, costs $25. Starting a contested claim or proof of a will in solemn form costs $50.

The Court may make interested persons parties to proof of a will in solemn form or to revocation proceedings. Proof in solemn form is a more formal way of proving the will, and it is where a dispute is tested.

If you are served with a citation and do not file a notice of intent to contest, you are not entitled to notice of further proceedings. While the validity of a will is pending, the Court may appoint an interim administrator, who cannot distribute the residue.

Grounds that can support a challenge

Being disappointed or excluded is not itself a ground to challenge a will. You need a recognized reason, and the reasons that come up fall into three kinds: formal defects under the Wills Act, revocation under the Wills Act, and common-law grounds.

• Formal defects: a will is valid only if signed at its end by the testator before two or more attesting witnesses present at the same time, who then sign in the testator's presence.
• Witness gifts: a gift to an attesting witness or the witness's spouse is void as to that person, unless at least two other disinterested witnesses attested.
• Revocation by marriage: a will is generally revoked by the testator's later marriage unless it was made in contemplation of it.
• Common-law grounds: lack of testamentary capacity, undue influence, fraud, and lack of knowledge and approval.

The formal defects and witness gifts rest on the Wills Act. Revocation by marriage also comes from the Wills Act. The common-law grounds are decided by common-law principles. On capacity and knowledge and approval, the person putting forward the will carries the burden, which shifts back if suspicious circumstances arise. Fraud or undue influence must be proved by those attacking the will. Some wills are valid despite missing formalities, such as a holograph will wholly in the testator's handwriting and signed, and a court may declare a document valid as a will if satisfied it embodies the deceased's testamentary intentions.

What to do next

• Write down why you believe the will is invalid, and tie it to a recognized ground.
• Gather the will, any earlier wills, medical records and names of witnesses, if you can.
• Contact the Registrar or a probate office clerk promptly about lodging a caveat.
• Ask the Clerk how the Court treats a caveat filed after a grant has already issued, because that situation should be confirmed.
• Keep track of any warning and the ten-day deadline for Form 3D.
• Speak with a lawyer early about your grounds and the risks of a contest.

Frequently asked questions