Will Disputes: Using a Caveat to prevent a Grant of Probate
For many people, the death of a loved one can bring uncertainty and stress, at a time when they are already grieving. In cases where there is a possibility that a Will may not be valid, the whole situation can feel like a minefield to navigate. However, there are some practical steps that you can take if you find yourself in this position.
What is a caveat?
A caveat is a written notice that can be used to prevent a grant of representation from being issued, if you believe that the purported last Will is invalid. Alternatively, you may have concerns regarding the appropriateness of a Personal Representative to extract a grant, if for example they are/have been bankrupt or that they lack the necessary capacity to administer an estate.
A caveat will in effect prevent a grant of representation being issued for six months. A caveat can be lodged online via the GOV.UK website for a small fee and the six month period can be extended by applying to the Probate Registry for an extension.
A person who enters a caveat is called a caveator and can be anyone who seeks to block the issuing of the grant. That being said, it is inappropriate to enter a caveat if you have no interest beneficial in the estate. This is explained in further detail below.
Legitimate Reasons to lodge a Caveat
The main reason that a caveat is usually entered is if there are fears that a deceased’s Will is not valid. This can be for a number of reasons, such as if there were indications that the testator had lacked the requisite mental capacity at the relevant time (i.e when the Will was created and/or executed). Similarly there may be concerns that undue influence had been exerted over the testator in relation to the creation of a Will which departed from their actual testamentary wishes, usually to the benefit of the person exerting the undue influence.
There may also be concerns that the will is a fraud or forgery, which are circumstances that sometimes arise if the Will was DIY Will i.e not professionally drafted.
It may even be that the caveator suspects that the purported last Will is not the actual last Will but that a later Will was signed by the deceased.
A caveat could be lodged in all of the above instances to provide time to a disappointed beneficiary and/or potential claimant to further investigate the full circumstances surrounding the creation and execution of a Will.
When Not to Lodge a Caveat
A caveat should not be lodged if the caveator intends to bring a claim against the estate for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). There is a statutory limitation period in respect of such claims (being 6 months from the date of issue of a grant) and as such a caveat entered for this reason would be considered an abuse of process which could ultimately result in a wasted costs order being made against the caveator.
If there is potential for a claim under the 1975 Act, then a standing search should be entered at the Probate Registry. This means that the Probate Registry will notify the applicant when a grant of representation is issued which is crucial because the grant will then start the clock running for the limitation period on a claim under the 1975 Act.
Similar to a caveat, a standing search will also remain in force for 6 months and is renewable upon payment of a further fee.
What to do if a third Party ‘Warns off’ your caveat
If you have lodged a caveat due to concerns regarding a Will, it is possible for a third party (usually a Personal Representative or other beneficiary of the estate) to try and compel the removal of your caveat.
They may seek to warn off your caveat by entering a Warning to the grant (under the Non-Contentious Probate Rules 1987 r44). The Warning must be filed at the Probate Registry and served on the caveator within 14 days from the date of service requiring the caveator to enter an Appearance. If you do not wish to voluntarily withdraw your caveat you can enter an Appearance which will set out your interest in the estate and reasoning behind wanting to prevent a grant of representation from being extracted. The entering of an Appearance will effectively make the caveat permanent such that it can then only be removed by the agreement of the parties or by a Court Order following litigation in the Chancery Division. Consequently, once an Appearance has been lodged, all parties to the dispute are at risk of an adverse costs order being made. We would therefore strongly advise that you seek independent legal advice at the earliest opportunity if you are served with a Warning.
If you do wish to seek advice regarding lodging a caveat or how to proceed when you have been served with a Warning, please do contact Irwin Mitchell LLP on 0808 291 2246 or visit our Will, Trust and Estate Disputes web page for more information.
