A caveat is a formal legal notice filed at the New Brunswick Probate Court to halt the probate process. If someone files a caveat against your application, you cannot administer the estate until a judge at the Court of King’s Bench resolves the dispute, which often involves a formal trial regarding the Will’s validity.
The role of an executor is usually an administrative one, focused on paying debts and distributing assets quietly. 📄 However, when family dynamics sour, a disgruntled relative might attempt to legally sabotage the process. In New Brunswick, the legal mechanism used to temporarily freeze an estate is called a caveat.
If you are trying to probate a Will in Oromocto, Dieppe, or Sussex, and a caveat is lodged against the estate, the standard paperwork process immediately stops. 📍 The matter transforms from a simple administrative task into active estate litigation. This guide explains how to navigate this stressful situation and defend the deceased person’s final wishes.
Step-by-Step Response to a Caveat in New Brunswick
A caveat acts as a warning to the Probate Court not to issue Letters Probate to the executor without notifying the person who filed the caveat (the “caveator”). Once lodged, you must take proactive legal steps to remove the block.
Step 1: Pause All Estate Administration
The moment you receive official notice that a caveat has been filed, you must immediately stop any plans to distribute money or sell estate property. 🚨 The caveat legally freezes your authority. Your only job at this stage is to secure the physical assets (like locking the house and keeping insurance active) to ensure nothing is lost or stolen during the dispute.
Step 2: Hire an Estate Litigation Lawyer
A caveat means you are heading into a complex court battle. 👤⚕️ You cannot resolve this with standard forms. You need to hire a lawyer who specializes in estate litigation. Your lawyer will review the grounds for the caveat-usually allegations that the deceased lacked mental capacity when signing the Will, or that someone exerted “undue influence” (pressure) over them.
Step 3: Issue a Warning to the Caveator
Your lawyer will typically issue a formal “Warning” to the person who filed the caveat. 📧 This legal document demands that the caveator formally state their legal interest in the estate and their exact reasons for objecting to the Will. If the caveator fails to respond within a strict time limit, your lawyer can apply to have the caveat cleared by the court.
Step 4: Proof in Solemn Form Hearing
If the caveator responds and insists the Will is invalid, the matter escalates to the Court of King’s Bench. 🏫 You will be required to prove the Will in “Solemn Form.” This means an actual trial will occur where the witnesses who saw the deceased sign the Will must testify under oath, and medical records may be subpoenaed to prove the deceased was of sound mind.
How Much Does Estate Litigation Cost in NB?
Fighting a caveat is an expensive process. 💵 While these costs are often paid out of the estate rather than the executor’s personal pocket, they heavily reduce the final inheritances:
| Litigation Expense | Estimated Cost (CAD) |
|---|---|
| Estate Litigation Lawyer | $300 – $600 per hour |
| Court Filing Fees (Motions/Hearings) | $100 – $300+ |
| Medical Expert Witnesses (If capacity is challenged) | $3,000 – $10,000+ |
| Total Trial Costs (If not settled early) | $20,000 – $100,000+ |
How Long Does the Process Take?
A caveat immediately derails the normal probate timeline. 🕑 A caveat typically remains active for 6 months in New Brunswick, unless the court removes it or it is renewed. If the dispute goes all the way to a “Proof in Solemn Form” trial at the Court of King’s Bench, resolving the issue can easily take 1.5 to 3 years.
Frequently Asked Questions (FAQ)
Who is allowed to file a caveat?
Not just anyone can file a caveat. The caveator must have a legitimate financial interest in the estate. This usually means they are a beneficiary under an older version of the Will, or they are a family member who would inherit under the Devolution of Estates Act if the current Will is thrown out.
What are the most common reasons for a caveat?
The most common grounds are “testamentary capacity” (claiming the deceased had severe dementia and didn’t know what they were signing) and “undue influence” (claiming a caregiver or family member bullied the deceased into changing their Will).
Who pays the lawyer fees if a caveat is filed?
Generally, the executor’s legal fees to defend the Will are paid out of the estate funds. However, if the judge determines the caveator filed a frivolous or completely baseless caveat just to cause trouble, the judge can order the caveator to pay the estate’s legal costs out of their own pocket.
Can we just settle the dispute out of court?
Yes. Many caveat disputes end in a negotiated settlement. For example, the executor and beneficiaries might agree to pay the caveator a specific sum of money in exchange for them formally withdrawing the caveat, which avoids the massive costs of a trial.
Leave a Reply