When someone dies and leaves a will it is for the executor named within the will to apply for a grant of probate to allow them to administer the estate.
The grant confirms the legal authority of the executor and allows them to deal with the deceased’s assets, such as closing bank accounts, selling property and paying debts and expenses. The grant additionally proves the validity of the will.
Delaying the Grant of Probate
In certain circumstances it may be appropriate to delay a grant from being issued. For example:
- Where there is doubt as to the validity of the deceased’s will;
- There is an objection to a grant issuing to a particular person (for example due to doubts as to their ability to administer the estate properly);
- Where it is believed that there may be a valid will, but this has not yet been found.
To delay a grant a caveat can be entered. This will allow time for investigations to be undertaken regarding the circumstances of the preparation of the will and if necessary for legal advice to be taken.
What is a caveat?
A caveat is a written notice given (by a caveator) to show that a grant of probate should not be issued without the caveator being notified.
It should be noted that where a person intends to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 it will usually be inappropriate to enter a caveat and instead the standing search procedure should be used.
The caveat will alert all of the probate registries not to issue a grant until the caveat is removed.
Who can enter a caveat?
- Any person with an interest in the estate or an interest that is different to the person who is applying for the grant and who is 18 years old or over;
- The person must be the sole caveator. It is not possible to enter a caveat jointly.
How to enter a caveat
A caveat can be entered on your behalf by a legal professional, alternatively an application can be made online.
The fee for entering the caveat is £3. The probate registry should acknowledge receipt of the caveat and keep a record on Probateman. This is a computer system that links all of the registries. The caveator will receive confirmation from the probate registry that the caveat has been entered together with a caveat reference number.
How long will the caveat last?
The caveat is effective for six months from the date of entry and thereafter may be renewed every six months until it is removed. There is a fee of £3 upon each renewal.
The caveat will cease to have effect in the following circumstances:
- It is withdrawn by the caveator. This can be done at any time as long as an appearance to a warning has not been entered;
- A district judge or registrar makes an order to remove the caveat;
- A probate claim begins in the high court. However, the claim itself will prevent a grant issuing (except for certain forms of limited grant);
- The caveator does not enter an appearance to a warning and there is no summons for directions.
How will the caveat be discovered?
Unless the caveator notifies the proposed executors (and they are not required to do so) the executors are unlikely to discover its existence until they apply for the grant. At that point the application will be rejected and they will be notified of the existence of the caveat.
How can the caveat be challenged?
A caveat can be warned off. Any person claiming an interest in the estate may issue a warning. The warning should state the person’s interest and confirm to the caveator that they have 14 days in which to respond by way of entering an appearance or if they do not have a contrary interest, but wish to prevent a grant issuing to a particular person, to issue and serve a summons for directions.
Once the warning has been served the caveator has the following options:
- Entry of an appearance;
- Withdrawal of the caveat;
- To Issue and serve a summons for directions;
- Do nothing.
Entering an appearance
This is not a physical appearance but is a written response which details the nature of the interest that conflicts with the person who issued the warning. For example the caveator may believe that the will is not legally valid.
The appearance must be entered within 14 days from the date of service of the warning. Outside this time period an appearance can still be entered but only if the person issuing the warning has not yet filed an affidavit or witness statement.
If the appearance is incorrectly completed the probate registry may reject it.
What is the effect of an appearance?
Once an appearance has been entered a grant may not issue unless ordered by a district judge or registrar. The caveat remains in place until a probate action is commenced or all the parties are able to cooperate and agree to the discontinuance of the caveat. Were such an agreement is reached an application to the registrar is required to seek an order for discontinuance.
Can a caveat be withdrawn?
If following investigations the caveator decides not to pursue a claim against the deceased’s estate, as long as an appearance has not been entered, the caveat can be withdrawn by contacting the registry where it was entered and notifying the person who issued the warning of the withdrawal. Where a caveat was entered online, Leeds district probate registry would deal with its withdrawal.
What does it mean to issuance of a summons for directions?
It may be that the issue is not with the content of the will (or the application of the intestacy rules) but instead with the person entitled to take the grant. In this scenario the caveator can issue a summons for directions from a district judge or registrar, supported by appropriate written evidence.
This must be done within 14 days of the warning being served (or later if the person entering the warning has not filed an affidavit or witness statement).
It is open to the district judge or registrar to make directions which could include ordering the removal of the caveat and confirming to whom the grant may issue.
What happens if no further action is taken after receipt of a warning?
14 days after the service of a warning, if an appearance has not been entered and there is no summons for directions, it is open to the person who served the warning to file an affidavit or witness statement confirming service of the warning and the caveat would then be removed.
Cost considerations
Once an appearance has been entered the issue of costs can not be ignored. The caveat becomes permanent and can only be removed by way of formal process as set out above, which inevitably incurs costs.
Additionally there is a possibility that a party may become liable to pay not only their costs but the costs of their opponent as well. For this reason we strongly recommend that advice is sought in the early stages if you are contemplating challenging the validity of a will. Consideration needs to be given as to what investigative measures are appropriate and whether the evidence is supportive of a claim in the early stages.
