A caveat can be lodged in the court registry against the issue of a grant of probate or letters of administration. The applicant for the grant then needs to decide whether to apply for an estate caveat removal order or to go to a trial to have the deficiencies alleged by the caveator decided. Similar measures apply in all Australian states.

A Victorian court was recently asked to remove two caveats lodged in the context of allegations of testamentary incapacity and undue influence over the period during which a testator made two wills.

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Clarice Robustelle died aged 91 in March 2021, having never been married and with no children.

Clarice had been actively involved in farming on her property near Wangaratta for many years. From 2004 she was assisted in those endeavours by Stephen Atkins and his son Bryden who were allowed to occupy another residence on Clarice’s property.

Other than some small pecuniary gifts, Clarice’s will in March 2018 left the bulk of her estate to Stephen, or his son Bryden if the former did not survive her.

Steven died in February 2020.

Bryden applied for a grant of letters of administration for Clarice’s 2018 will.  At the time of the application, the estate was valued at approximately $7.25m and at the time of hearing, at $8.6m.

Before a grant was issued, Clarice’s niece Jeanette Clarke filed a caveat against the grant on the basis that Clarice lacked the requisite testamentary capacity to make the 2018 will and that – alternatively – she made the will as a result of Stephen’s undue influence.

Jeanette sought to impugn that will and an earlier will made in August 2012, also on the ground of Stephen’s alleged undue influence.

In response, Bryden promptly applied to the Supreme Court for removal of the caveat on the basis that Jeanette – being a beneficiary under neither will – had no standing to make it.

Justice Kate McMillan observed though – when the matter came before her – that Jeanette would have standing if she sought to propound a will made in July 2008 under which she was the major beneficiary. She directed Bryden to also seek a grant in respect of the 2012 will, in the alternative.

As expected, Jeanette caveated that will thereby allowing consideration of Bryden’s application for the removal of the caveats in the context of the validity of all wills.

That argument came before Justice Steven Moore who had to decide whether Jeanette had established a prima facie case sufficient enough to warrant full consideration and determination at a trial or whether the caveats should be summarily removed.

He noted Jeanette’s contention that Clarice’s cognitive abilities had been in long-term decline since 2012 when she reported difficulties remembering names, culminating in a VCAT declaration in 2017 (later revoked in 2018) that she was unable to make judgements about herself or her assets.

He also pondered allegations of Stephen’s coercive conduct – starting in 2006 and continuing until his death in 2020 – and whether they might establish Clarice was subject to his control when the 2018 and 2012 wills were made.

Bryden contested the allegations and asserted that they failed to prove actual coercion as opposed to a mere opportunity for coercion.

The court observed though that Jeanette – to successfully resist the removal of the caveats – did not have to prove the alleged coercive behaviour but rather, only had to establish a prima facie case.

His honour also concluded that evidence of mental disorder 9 months before the 2018 will was sufficient to warrant a trial in relation to that will’s validity.

He refused to order removal of the caveats and the dispute will go to trial where a judge will decide whether or not to accept each of Jeanette’s allegations.

Re Robustelle (No 2) [2023] VSC 72 Mooe J, 24 February 2023