Using a caveat to prevent a grant of probate.
If there are concerns over the validity of a deceased’s person’s will, a caveat can stop a grant of probate from being obtained. Lodders’ contentious trusts and probate specialist Anjali Narshi explains how.
It will often be appropriate for a caveat to be entered at the probate registry on behalf of family members or potential beneficiaries who are concerned about the validity of a deceased person’s will.
A caveat is a notice which prevents anyone from being able to obtain a grant of probate in the deceased’s estate. An estate cannot be administered while a caveat remains in place.
How to enter a caveat
Entering a caveat is a straightforward application and the fee is £3. It can be done online or by submitting a postal application. Once entered, the caveat remains in force for six months but may be renewed after every six month period. Renewing the caveat is simple. The person who entered the caveat (the caveator) must contact the probate registry the month before the caveat is due to expire and pay a renewal fee of £3. If a caveat is not renewed, any pending application for a grant of probate (or any applications made after the caveat expired) will be processed.
Reasons for entering a caveat
Entering a caveat allows disappointed beneficiaries time to digest what has happened, take appropriate legal advice and think about what they want to do, while protecting their position to bring a claim if they wish to. If instructed, it also means that we have time to investigate matters further to see if there is any merit in bringing a claim. This could be by way of obtaining information from the solicitor who prepared the will or gathering medical evidence, for example.
If after completing the enquiries we feel there is a case to answer, we would either take steps to negotiate a resolution or bring a contentious probate claim. If there is no case to answer the caveat should be removed to allow the estate to be administered.
When a caveat may not be possible
A caveat should not be used if the client wishes to bring a claim under the ‘Inheritance (Provision for Family and Dependants) Act 1975’, which is an Act allowing certain people the right to challenge the distribution of the estate (rather than the validity of the will) if they believe reasonable financial provision has not been made for them.
If a caveat is entered in these circumstances, or if it appears that the caveat should no longer be in place, then the executors or ultimate beneficiaries of the will could seek for it to be removed (known as ‘warning off’). There is no fee to pay to do this and once the warning has been served on the caveator, they must decide whether they want the caveat to remain in place or not. If they are happy for the caveat to be removed, they must notify the probate registry so that the grant of probate can be issued. Otherwise, they must ensure the caveat remains in place by ‘entering an appearance’ within 14 days. Again, no fee is payable for filing this document with the probate registry. Once an appearance has been entered, this makes the caveat permanent and it can only be removed by the consent of the parties or the court.
Circumstantial review
Whether a caveat continues to be appropriate will depend upon the circumstances and it needs to be kept under review. Advice should be taken because if an appearance is entered then caveator could face costs consequences if the court considers it should not have been entered. Advice should also be taken by the executors or ultimate beneficiaries as they could face costs consequences if the court believes they have behaved unreasonably by warning off the caveat too soon, or at all.
More information
If you require bespoke advice in relation to your specific case, our experts can assist you. For more information, or for an initial chat, please get in touch with Anjali Narshi.
Our answers should not be considered as formal legal advice as the background of any situation may affect the advice that we give.
Contact usAnjali is an associate in the Dispute Resolution team at Lodders and specialises in resolving contentious trust and probate issues.
