When investigating whether a Will might be invalid, one party may block the issuing of a grant of probate by entering what is called a “caveat”. This article explains what that means.
In a series of articles I considered the main grounds for challenging the validity of a Will. But what are the practical steps that a party considering a challenge should do?
Firstly, they need to investigate whether there are any grounds for suspecting the Will might be invalid. There are two steps that are likely to be taken to do this:
- Enter what is called a “caveat”; and
- Prepare and send a “Larke v Nugus” request to the Will drafter (usually a solicitor or Will-writer) for information as to the preparation and execution of the Will.
This article will explain what a caveat is and the process for obtaining one. I will deal with Larke v Nugus requests in a separate article.
What is a Caveat?
A caveat is a means of placing a block on the issuing of a grant of probate by the Probate Registry. If the caveat is entered before an application for a grant of probate is submitted, it will stop that application from being processed and the Will proved.
The cost of applying for a caveat is £3. It used to be done by submitting a form to the Probate Registry but it can now be done almost instantly, and with significant ease, online.
Once entered, unless it is warned off (see below) it will remain in place for a period of six months, extendable by further periods of six months.
Why enter a Caveat?
Caveats are not appropriate for all claims against an estate, for example a claim under the Inheritance (Provision for Family and Dependents) Act 1975. The two scenarios where a caveat might be deployed are:
- Where there is a Will and there are grounds to suspect it is not valid, the caveat will allow the suspicious party time to investigate and, if they consider there are grounds for challenging its validity, prevent the Will from being accepted by the Probate Registry; or
- In situations where there is no Will and the estate passes under the intestacy rules, if a party wants to prevent another from obtaining a grant of letters of administration (for example, if they consider they have a greater right to administer the estate, or they consider the intending administrator is not a fit and proper person to be administering the estate).
For the purposes of this article, I am focussing on the first of the two scenarios.
What happens next?
At the end of six months, the caveat will either expire or be renewed.
If it is renewed then the executors will, after a reasonable period of time to allow investigations, need to apply to “warn off” the caveat. This is an application that is submitted to the Leeds District Probate Registry and, once issued, is served on the party who took out the caveat.
They then have 14 days to enter what is known as an “appearance”. The appearance needs to set out the grounds on which the validity of the Will is challenged.
If no appearance is entered, the caveat will expire and the application for a grant of probate will be progressed. If an appearance is entered then the caveat becomes permanent and the only way that it can be removed is by court order or with the agreement of the parties. This means that the underlying issues over the validity of the Will will either need to be determined by the court or agreed between the parties by consent.
That is not the end of the story however, because if the underlying claim is not progressed or the caveat is lodged without good reason then the executor may well issue proceedings to have it removed and that can result in costs sanctions being imposed.
Caveats are dealt with under the Non-Contentious Probate Rules 1987 but they are rarely anything but contentious. The implications to the administration of an estate and the potential costs consequences if they are inappropriately applied for means that expert advice should be sought before applying for a caveat. Moreover, they will be the preliminary step in what will likely be a highly fact sensitive and legally complex claim.