Challenging a caveat

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In this brief guide to challenging a caveat we look at the steps you can take when you discover that a caveat has been issued against an estate where you are an executor or beneficiary

 

Discovering that a caveat has been entered

A caveat can be entered against an estate without notice being given to the executors or beneficiaries. It can therefore come as a massive surprise when an application for a Grant of Probate is rejected because a caveat has been entered against the estate.

Once a caveat is in place the executors’ hands are tied. A Grant of Probate cannot be issued and the administration of the estate is put on hold. Although a caveat is only effective for 6 months it can be renewed indefinitely, so it is a very effective means of preventing an estate being administered.

The purpose of the caveat

The caveat itself will not spell out the reasons for it having been entered. Generally speaking the person who entered the caveat will contact the executor and provide details of their concerns. However this is not always the case and some people who enter caveats can be remarkably reticent about addressing the issues at the heart of their dispute.

Occasionally the caveat system is abused and people enter a caveat in situations where they should not do so. A classic example of a caveat being wrongly used is when someone is pursuing an Inheritance Act claim. A caveat should never be entered when such a claim is being made; The correct procedure is for the claimant to issue a standing search. Another abuse is where the caveat is issued simply to hold up, frustrate and delay the administration of the estate without any legal justification for doing so.

Where a caveat is entered correctly it will usually be because someone has a genuine concern about the validity of the will. For instance it might be felt that the maker of the will did not have the requisite mental capacity when the will was executed. Alternatively there might be allegations of undue influence or even fraud. Caveats are also used where there is a dispute over who should apply for the Grant of Probate. In all these situations when the caveat is entered the estate cannot be administered while it remains in place.

Challenging a caveat

The entry of a caveat generally leads directly to an exchange of communications between the person who entered the caveat (the caveator) and the executors of the will, frequently via solicitors representing each of the parties. This can often result in the dispute being settled, following which the caveat will be removed by agreement. However, where an agreement cannot be reached (and the caveator does not pursue court action to progress their claim) then steps will usually be required to formally challenge the caveat in order to enable the deadlock to be broken.

Issuing a warning

An executor or beneficiary under a Will can issue what is known as a ‘warning’ at the Probate Registry. This formal notice is served on the caveator who then has just eight days to respond by either entering an ‘appearance’ or asking the court to issue a summons for directions. If these steps are not taken within eight days the caveat will cease to have effect and the Grant of Probate can be issued, thereby allowing the estate to be administered in accordance with the will.

When an appearance is entered

When faced with a warning the caveator must decide how serious they are about challenging the will. In order to keep their caveat in place they can enter an appearance at the Probate Registry. Although it is called an ‘appearance’ it does not require a physical appearance in court. Instead it is achieved by completing a court form. Having been entered, the appearance has the effect of ‘sealing’ the caveat. Once a caveat is ‘sealed’ by the court it can only be removed:

a) by consent between the parties to the dispute, subject to approval of the court, or

b) by order of the Court.

Alternatively the caveator can issue a court summons for directions within the eight day period. A court hearing will then be scheduled when a judge will decide how the dispute should be determined.

Neither of these options should be exercised lightly. They both involve court action and this raises the possibility of a costs order being made against the parties. The risk of an adverse costs order is a very serious consideration, especially as legal costs in contentious probate disputes can quickly escalate. Both sides are therefore generally encouraged to attempt to settle their differences outside court.

How we can help you when challenging a caveat

If you are considering challenging a caveat then please feel free to contact our legal helpline. We are always happy to provide initial guidance on a free of charge basis and set out the options available to you. We can also discuss funding options, including our ‘deferred fees’ arrangement where we receive payment upon conclusion of the dispute when the estate assets can be released.

Because of the tight deadlines involved it is important to act quickly and avoid delay. Call us on 0808 139 1606 or send an email with details of the case to us at [email protected].