Are you a named executor in a Will – or administrator if no Will – but are being “left out of the loop” for no good reason? Is there a dispute about who can apply for probate, or about the existence or legality of a Will?
If so, it may be necessary to challenge someone else’s application for probate (or letters of administration where there’s no Will).
This Insight will cover the use of ‘Caveats’, a mechanism used to prevent the release of a grant of probate/letters of administration because there’s a dispute over a deceased’s Estate.
We explain what a caveat is, when it may be appropriate to use one, how to apply for one, and the potential issues and cost implications involved in deciding to use one.
What is a caveat?
Generally speaking, a caveat is a type of notice requesting a person to suspend a specific action. In the context of estate administration, a caveat can be used by someone to put a stop on an application for grant of probate (where there is a Will) or a grant of letters of administration (where there is no Will).
The caveat works by notifying the probate registry to not process an application for grant of probate without first informing the person who entered the caveat (the caveator), providing that person with an opportunity to respond to the application.
When would you use one?
Caveats are most commonly used where the validity of a deceased’s Will is in question but could also be used to challenge the way an estate is being handled; or because there’s a dispute between those seeking to represent an estate. Putting matters ‘on pause’ in this way can provide the necessary time to investigate and address any concerns about the deceased’s estate, including obtaining information from solicitors who prepared the deceased’s Will or obtaining evidence from witnesses or medical reports from Doctors.
How do you enter a caveat?
The procedure involves an application to the Probate Registry. You must be 18 or over and live in England and Wales. You’ll need to know details of the deceased and pay a fee. If there are any concerns or doubts about lodging a caveat, you’re strongly encouraged to seek legal advice before going ahead. Some of the problems inherent in lodging spurious caveats – including potentially disastrous costs consequences – are illustrated in stark detail below.
What happens once a probate caveat has been entered?
Once a caveator lodges their notice to prevent probate, anyone attempting to apply for a grant will be notified that they cannot proceed with the application. The person applying for grant may then decide to allow reasonable time for the caveator to make enquiries/raise any issues or concerns; or they may decide instead to ‘warn off’ the caveat – more on warnings below. If no challenge is made, the caveat will remain in place for 6 months, and it can be renewed every 6 months beyond that.
Warnings and Appearances
In circumstances where the person applying for a grant thinks a reasonable time period has expired since a caveat was lodged, they can then issue a ‘warning’ on the caveator. This is a formal document used to try and remove the caveat. Once served with the warning, the caveator has 14 days to enter an ‘appearance’ to keep the caveat in place. This isn’t a physical appearance, but a formal document in response to the warning.
At this point, the caveat will become permanent and can only be removed with the consent of the parties or by an order of the court. If no appearance is entered within the 14-day time period, then the person who issued the warning will need to prepare evidence to prove service of the warning to arrange for the caveat to be removed.
There are potential costs consequences for both parties of a caveat application. This is because the court:
- May consider that either party has acted unreasonably;
- Will not tolerate caveats entered or left in place on false grounds;
- Will penalise unreasonable warnings.
A case in point from 2016: the caveator faced liabilities of over £100,000 because she’d left her caveat in place despite being in possession of evidence proving her particular claim had no merit.
What if a grant is needed urgently?
It may be that a grant is required to protect or preserve assets (such as enabling a property sale to go through). In this case, a limited grant can be obtained which will permit the personal representatives to collect in assets and pay liabilities, but what it won’t do is allow for distribution of the estate.
Can I use a caveat to ‘buy time’ to make an inheritance claim?
A caveat should not be used simply to ‘buy time’ for the sake of it. A caveat is also not recommended if someone wants to bring a claim for ‘reasonable financial provision’ from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. For more information on this type of claim please instead refer to our insight.
Not to be entered into lightly
Entering or leaving in place a caveat without legitimate reasons is an abuse of process. You should first try to come to an agreement with the person applying for probate/letters of administration.
If you are thinking of entering a caveat or have any causes for concern about an estate, then please don’t hesitate to get in touch with one of our Private Client team for more information and guidance, particularly as it could lead to a contentious probate claim.
If you’re interested in caveats and whether you should use one in your current situation get in touch with our team of expert Private Client Law Solicitors for a no-obligation phone call on 0330 912 8338.