CONTENTIOUS PROBATE

Understanding caveats in probate: when and how to use them

Probate, the legal process of administering a deceased person’s estate, often involves complexities and potential disputes. One tool frequently used in such situations is a caveat. But what exactly is a caveat, and when should you consider using one?

What is a caveat?

A caveat is essentially a written notice lodged at the probate registry. Its purpose is to halt the administration of an estate and to stop a grant of probate or letters of administration being issued without notifying the individual who lodged the caveat. This measure serves as a safeguard to the distribution of the estate and allows the individual concerned time to investigate any claims that they may have against the estate.

When to lodge a caveat

There are several scenarios where lodging a caveat may be appropriate:

  • Doubts about validity: If there are concerns regarding the validity of the deceased person’s will, a caveat can prevent the grant of probate until these doubts are resolved.
  • Dispute regarding Executorship: In cases where there is a dispute over who is entitled to act as the executor or administrator of the estate or their fitness to take up the role, lodging a caveat can provide time for resolution.
  • Concerns about Estate distribution: If there are worries that the estate might be distributed incorrectly, a caveat can pause the probate process until these concerns are addressed.

It’s important to note that the person lodging the caveat must have a legitimate interest in the estate and be over 18 years old. The process of lodging a caveat is relatively straightforward and inexpensive, with a fee of £3 for a six-month duration. If the dispute is not resolved within that six-month period then the caveat should be renewed.

If a caveat is not issued (or subsequently renewed) then a Grant of Probate or Letters of Administration may be granted in circumstances where it is inappropriate and the chance to make a claim may be lost.

Navigating the process: a case example

To illustrate how caveats function in practice, consider the following scenario:

Jane’s mother died last year and she believes that her mother’s last will is not valid because it was made whilst she had dementia and the will cuts her out of the estate for no reason. That will appointed Jane’s brother John as Executor and left the whole estate to him. To protect her position, Jane has lodged a caveat against the estate, halting John from obtaining a grant of probate. Jane is now gathering evidence to support her claim. If she finds no grounds to make a claim, she will need to remove her caveat.

John subsequently applies for probate only to encounter Jane’s caveat, delaying the estate administration. John communicates with Jane to understand her concerns. Jane does not respond to John, despite him sending numerous chasers. John issues a warning and serves it upon Jane.

Jane receives the warning. Jane considers whether she has sufficient evidence to set out a claim that the will is valid because her mother did not have testamentary capacity at the time she made the will.  If Jane decides not to pursue the claim further, she can do nothing, and the caveat will be removed. However, Jane decides she does  want to pursue a claim and has the sufficient evidence. Therefore Jane enters an appearance at the probate registry within 14 days of receiving the warning outlining the legal basis of her claim.

If no appearance was filed within the timeframe, John would have been able to notify the probate registry to remove the caveat. However, as Jane has filed an appearance which is accepted by the probate registry, the caveat has become permanent, and can now only be removed by Court Order.

Considerations and risks

While caveats can be valuable tools, there are risks involved for both claimants and executors/administrators:

  • Abuse of process: lodging a caveat in circumstances where it is not appropriate to do so is an abuse of process
  • Costs and delays: A failure to respond promptly can lead to prolonged legal proceedings, escalating costs, and causing delays in the estate administration.
  • Court intervention: If a claimant insists on pursuing a weak claim, executors may seek court intervention, potentially resulting in the claimant bearing the costs of the same.

Conclusion

Caveats serve as a vital mechanism in probate proceedings, allowing Claimants time to investigate their position and enabling the parties to resolve disputes before the estate is administered. However, their use should be approached with caution and diligence. Both claimants and executors must act promptly and reasonably to ensure the efficient administration of the estate.

If you find yourself in a situation where you believe you have a claim against an estate or are facing a dispute as an executor or beneficiary, it’s essential to seek guidance from legal experts. Effective navigation of probate matters requires careful consideration and expert advice.

[If you believe that you have a claim against an Estate or you are an Executor or beneficiary faced with a dispute involving an estate, then please feel free to get in touch.

About the authors


about the author img

Cathryn Culverhouse

Partner

Expert in a wide range of complex contentious probate disputes including 1975 Act claims, validity disputes and undue influence claims.
about the author img

Jenny Ray

Partner

Specialist in assisting clients in resolving disputes about wills, estates and trusts.

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