Chapter 7 - Caveats, O.71, r.37 Flashcards

1
Q

CAVEATS

Overview

A

1) Purpose of caveat
2) Who can be a caveator
3) Procedures to lodge caveat
4) Removal of caveats
5) Caveator enters appearance

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2
Q

CAVEATS

Purpose of caveat

A

O.71, r.37

  • to ensure that grant of representation in relation to deceased estate is not made without notice to the caveator.
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3
Q

CAVEATS

Who can be caveator

A

S.33 PAA

  • any person with interest in the state can be a caveator.
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4
Q

PROCEDURES TO LODGE A CAVEAT

Overview

A

1) File
2) Lifespan of a caveat
3) Effect of caveat

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5
Q

PROCEDURES TO LODGE A CAVEAT

File

A

O.71, r.37(3)

  • Form 134.
  • No service required.
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6
Q

PROCEDURES TO LODGE A CAVEAT

Lifespan of a caveat

A

O.71, r.37(5)

  • 6 months;
  • automatically ceases to have effect after 6 months.
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7
Q

PROCEDURES TO LODGE A CAVEAT

Effect of caveat

A

O.71, r.37(1)

  • ensure that grant of representation will not be extracted without notifying the caveator.
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8
Q

REMOVAL OF CAVEATS

Procedures for removal

WARN-STATE

A

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.
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9
Q

CAVEATOR ENTERS APPEARANCE

Overview

A

1) Contrary interest

2) No contrary interest

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10
Q

CAVEATOR ENTERS APPEARANCE

Contrary interest - example

A
  • caveator contesting the validity of will

- caveator contesting the interest of the intestacy

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11
Q

CAVEATOR ENTERS APPEARANCE

Contrary interest - law & procedure

A

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.
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12
Q

CAVEATOR ENTERS APPEARANCE

No contrary interest - example

A
  • showing cause against the making of a grant to that person
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13
Q

CAVEATOR ENTERS APPEARANCE

No contrary interest - law & procedure

A

O.71, r.37(11):

  • issue & serve a notice of application for directions within 8 days.
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