Conditions for Adding a Caveat in a Will

People leave wills to communicate their wishes, especially after their death.  

A will usually contains specific information, such as the named executor or the person who handles the deceased’s affairs and estate administration. It will also identify the beneficiaries, the people inheriting the testator’s assets, and the guardians appointed to care for minor children.    

Sometimes, a will differs from the expectations of the beneficiaries, guardians, and heirs. They may be unhappy about specific details in the document or doubt the validity and authenticity of the will. In such cases, they can challenge it by filing a caveat.  

Understanding Caveats  

“Caveat” is derived from the Latin word “cavere,” which means “let him beware.” It’s a warning about the dangers believed to arise after a particular action or event. Modern society has attached various meanings to the word, especially in finance and law. 

For example, in finance, caveat emptor means “let the buyer beware,” and caveat subscriptor means “let the seller beware.” 

In law, a caveat is a document disputing the validity of a will.

Caveat on a will or probate caveat

A caveat on a will is a legal document that prevents the executor from implementing it. Caveats are usually part of contentious probate proceedings, which is why they’re also called probate caveats. 

Different jurisdictions have their respective probate codes that affect the scope and function of caveats. For instance, a caveat filed in Florida must undergo litigation before the court admits the will to probate. In other states, while no such requirement exists, different rules may nonetheless apply.

In any event, a probate application cannot progress as long as there is a caveat. The court also decides how long a caveat will remain in effect, depending on the circumstances. Sometimes, there may be no limit.  

Reasons to add a caveat to a will

Though people can file a caveat for a variety of reasons, most boil down to doubts over the validity and authenticity of the will. A caveat may contest a will for its form or substance.  

For example, if a person files a caveat because a will was not signed in the presence of witnesses, which may be required by state law, they are challenging the will’s form.

On the other hand, a caveat that contests the substance of the will is challenging its content. For example, if a person believes that someone coerced the testator to sign the will, then they’ll be filing a caveat against the will’s substance. 

The following are the most common scenarios whereby a party may file a caveat challenging the substance of a will:  

• The executor refuses to cooperate with some of the parties to the will. 
• There is a dispute over any of the following:
  • Who wrote the will 
  • Who should or should not be heirs 
  • Who may apply for a grant of probate
  • The existence of a will
  • The testator’s mental capacity while writing the will
  • The circumstances surrounding the signing of the will (for example, when fraud, coercion, or forgery is involved)  

A caveat temporarily suspends the probate process as the court reviews evidence from the caveator, who is the person who filed the caveat. If the court accepts the evidence, the probate proceedings will be canceled. Otherwise, they will continue.  

Challenging and preventing a caveat 

There are three ways to remove a caveat. The caveator can withdraw the application, a court may terminate the caveat, or the caveat may expire. However, even if a court has approved a caveat, the probate applicant can still challenge it by issuing a warning.

Keeping the caveat in place requires the caveator to “enter an appearance” in response to this warning. This means they must submit a document to the probate court detailing why the caveat should remain. After an appearance is entered, the caveat becomes permanent, and only a court order or the parties’ consent can remove it. 

To prevent caveat issues, a testator may add a clause to exclude beneficiaries from later contesting the will. Such a clause, however, does not apply to a caveator who is not a beneficiary.  

Requirements for Adding a Caveat in a Will  

Like most legal codes in America, those governing caveats can vary from one jurisdiction to the other. This means that the conditions required to file a caveat on a will can also depend on the state where the testator executed the will. 

To bring harmony to this issue, the Uniform Law Commission drafted an extensive set of rules called the Uniform Probate Code (UPC) in 1969, primarily recommended for enforcement across the country. 

What is the Uniform Probate Code?  

The UPC contains a comprehensive range of standard rules that impact estate litigation and administration, non-testamentary transfers, intestacy, guardianship, and, of course, wills. So far, around 19 states have partially adopted the UPC, including Idaho, Colorado, Nebraska, New Mexico, Pennsylvania, New Jersey, and Massachusetts. 

Though probate laws affecting caveats still vary across the 50 states, they have several commonalities, especially regarding caveat-filing conditions. Note that these conditions generally center around the validity of the will. 

One universal requirement of a valid will is compliance with the laws of the state where the testator lived at the time of their death or the document’s signing. In most cases, the will should be in writing, notarized, and signed by the testator in the presence of two witnesses. The testator should be at least 18 or older and of sound mind, which means they should be able to appreciate the consequences of signing the will. 

An improperly executed will, however, may still be valid based on the harmless error rule under the UPC. A harmless error is a mistake that the court has either corrected or has no bearing on the outcome of the probate.  

Requirements for filing a caveat  

For a probate court to accept a caveat, the petition must follow specific requirements, which can vary depending on the jurisdiction where the caveat is filed. However, there are three general conditions a caveator must meet in filing a petition:  

Timing

As soon as probate proceedings begin, a party has a certain amount of time to challenge a will, which is known as the statute of limitations. This limitation period can also vary among states. 

For example, in North Carolina, a caveat must be filed within three years after an administrator applies the will to probate. If the entitled caveator is in jail, insane, or a minor, they may file a caveat within three years after their release, recovery, or 18th birthday.  

In Maryland, a person can file a caveat within six months after the first appointment of a personal representative under the will. This rule applies even if another probate or personal representative is later appointed on the same will. 

If another will or codicil (a supplement to the last will) has been brought for probate, this deadline is cut to three months. It starts either when the probate court accepts the will or codicil or within six months following the appointment of the first personal representative for the first probated will, whichever comes later.  

Upon a petition filed within 18 months of the testator’s demise, a caveator may ask for an extension of the filing deadline on any of two grounds. First, the caveator did not receive actual or statutory notice of the probate proceedings. Second, the proceedings involve fraud, material mistake, or any significant issue.

Merit 

Before a probate court approves a caveat petition, the caveator must provide evidence of the allegation contesting the will. While substantiating a probate caveat is not as tough as proving something “beyond a reasonable doubt,” as is the case in criminal proceedings, it’s still challenging. 

For example, if the state enforces the dead man’s statute, then the caveator cannot testify about anything the deceased person told them about the will. When proving undue influence, the caveator must establish that the person had the motivation and the opportunity to exert influence and that it’s evident in the will itself.  

In deciding on a caveat petition citing undue influence, the court will examine the following:

• The testator’s age and physical or mental vulnerabilities
• Whether the testator was under the supervision of the influencer in the testator’s home
• The degree of the testator’s isolation from other people aside from the influencer
•  The existence of a previously executed will that the current will differ from and revokes
• The disinheritance of the testator’s natural heirs in the new will 

Caveator’s legal standing

While people who aren’t named in a will may file a probate caveat, not everyone has the legal standing to do so. The only people with the right to contest a will are the following: 

• Beneficiaries of a prior or current will
• Beneficiaries of a version of a will after the will that’s now in question 
• People who would have been heirs in the absence of a will or intestacy law prohibition  

Again, the rules depend on the state where the testator lived when it was executed. The UPC provides a standard for all probate-related matters, such as caveats. However, some states have only partially adopted it, and others haven’t adopted it at all.  

The process of filing a caveat

The first thing to do when filing a caveat is to determine the statutory deadline, which could be a certain number of years, months, or even weeks. If the deadline has passed, it will automatically remove a person’s right to challenge the will. 

Once confirmed that the deadline has not passed, the caveator can file a petition in the state probate court. States have unique forms, so it’s good to research which one to fill out to avoid the hassle of refiling.

Filing the petition notifies the court that someone is contesting the estate. Of course, evidence is required to support the petition. The caveator may also be required to provide testimony or undergo a deposition, where they’ll answer questions under oath.  

Sometimes, the court will require the caveator to provide a sum of money as security to pay the legal costs and damages to a wrongfully restrained estate. 

When deciding the amount and whether to require a security deposit, the court will consider several facts related, but not limited, to the following:  

• Potential irreparable loss, damage, or injury to the estate arising from the caveat
• Whether the caveat has merit
• The doctrine of in forma papuperis, or “in the manner of a pauper,” allows the caveator to file a petition without paying court fees 

In any case, a probate caveat may end up in a settlement or proceed to a hearing. Ultimately, a judge will decide on the caveat and the validity of a will.  

The Importance of Seeking Legal Advice

Reading about the basics of probate caveats is often enough to understand just how complex the legal process is. There may be several scenarios that may necessitate the filing of a caveat, which can eventually lead to a full-blown trial.  

Estate lawyers are the best source of information and advice regarding caveat petitions. The caveator, the subject of the caveat, and even the testator (while alive) should seek the help of estate lawyers.  

A testator is not legally required to have a lawyer when drafting a will, but seeking a lawyer’s advice will surely benefit them. A lawyer can ensure the will is bulletproof and can withstand legal scrutiny. While working with a lawyer is expensive, it can save time in court and prevent a caveator’s chances of success down the line.  

If you’re a beneficiary or a caveator, a lawyer can advise you on the correct steps to take when challenging a will, especially when you’re scared about facing possible bankruptcy in the future. Their knowledge and experience will make sure that the challenge is done in a way that holds up in probate court.  

In any case, talking to an estate planning attorney before filing a caveat or drafting a will is always a wise decision. It will bolster the caveator’s chances of stopping the probate process, but it also helps keep costs to a minimum.