Chapter 7 - Caveats, O.71, r.37 Flashcards
CAVEATS
Overview
1) Purpose of caveat
2) Who can be a caveator
3) Procedures to lodge caveat
4) Removal of caveats
5) Caveator enters appearance
CAVEATS
Purpose of caveat
O.71, r.37
- to ensure that grant of representation in relation to deceased estate is not made without notice to the caveator.
CAVEATS
Who can be caveator
S.33 PAA
- any person with interest in the state can be a caveator.
PROCEDURES TO LODGE A CAVEAT
Overview
1) File
2) Lifespan of a caveat
3) Effect of caveat
PROCEDURES TO LODGE A CAVEAT
File
O.71, r.37(3)
- Form 134.
- No service required.
PROCEDURES TO LODGE A CAVEAT
Lifespan of a caveat
O.71, r.37(5)
- 6 months;
- automatically ceases to have effect after 6 months.
PROCEDURES TO LODGE A CAVEAT
Effect of caveat
O.71, r.37(1)
- ensure that grant of representation will not be extracted without notifying the caveator.
REMOVAL OF CAVEATS
Procedures for removal
WARN-STATE
O.71, r.37(8)
- issue warning telling caveator that an application to remove the caveat will be made;
- caveatee (i.e. applicant) must state his interest and ask caveator for any contrary interest.
CAVEATOR ENTERS APPEARANCE
Overview
1) Contrary interest
2) No contrary interest
CAVEATOR ENTERS APPEARANCE
Contrary interest - example
- caveator contesting the validity of will
- caveator contesting the interest of the intestacy
CAVEATOR ENTERS APPEARANCE
Contrary interest - law & procedure
O.71, r.37(10):
- caveatee served warning, caveator has 8 days to enter appearance;
- entry of appearance in Form 166;
- entry of appearance must be served on caveatee;
- once appearance is entered, the matter is deemed to be contested.
CAVEATOR ENTERS APPEARANCE
No contrary interest - example
- showing cause against the making of a grant to that person
CAVEATOR ENTERS APPEARANCE
No contrary interest - law & procedure
O.71, r.37(11):
- issue & serve a notice of application for directions within 8 days.
