Written By:
Patrick Murphy
Senior Associate
Darwin Gray
___________________________________________________________________________________________________________________________
When someone dies, their assets are usually distributed in accordance with their will, assuming they left one. However, disputes can arise when a party suspects that the will may be invalid for any reason, and they may therefore want to stop the administration of the estate whilst they investigate and make their claim. One way to prevent the executor from obtaining probate, thus preventing the administration of the estate, is to enter a caveat. Darwin Gray look at the key points.
What is a caveat?
A caveat is a legal document that can be lodged with the probate registry to prevent a grant of probate from being issued. A grant of probate is a legal document that authorises the executor named in the will to administer the deceased's estate in accordance with the terms of the will.
Where a caveat is entered against an estate, the probate registry will not issue a grant of probate in respect of that estate until the caveat is removed or the court orders it to be removed. Without a grant of probate, the executor is unable to administer the estate.
Who can enter a caveat?
Anyone with a legitimate interest in the estate can enter a caveat. This usually means beneficiaries, family members, and those who believe they may be entitled to a share of the estate. To enter a caveat, a person must have a reasonable belief that they have a valid claim to the estate or that there is a dispute over the validity of the will. They will need to provide the probate registry with the deceased's name, date of death, and last known address.
When can a caveat be entered?
A caveat can be entered after a testator has passed away, but must be before the probate registry issues a grant of probate to the executor. Once probate has been granted, a caveat would be of no effect, and a person seeking to challenge the will would need to consider alternative options.
Why enter a caveat?
Typically a person might want to enter a caveat in the following circumstances:
- They believe that the will is invalid, for example, if it was signed under duress or the deceased did not have the mental capacity to make a will, or that it appears that someone has tampered with or forged the will.
- There is a dispute over who should administer the estate, perhaps because the person named in the will would not be suitable for any reason.
After a caveat has been entered, the probate registry will not issue a grant of probate until the caveat has been removed or the court orders it to be removed. The caveat will remain in place for six months. This gives the person who entered the caveat time to consider their claim, collect any evidence which might be relevant and enter into discussions with the named executor and other beneficiaries to see whether they can resolve the claim without the need for Court proceedings.
At the end of the six months, the person can extend the caveat for a further six months if they wish. If they do not do so, the caveat will be automatically removed and the probate registry will issue a grant of probate upon receipt of an application.
How can a caveat be entered?
A person can either apply for a caveat online via the probate service website, or complete form PA8A and deliver it to any district probate registry. You will need the name of the deceased, the date of death, and their last known address. The probate registry charges a fee of £3 for a caveat to be entered.
Can a caveat be challenged?
If the person entitled to apply for probate believes that the person who entered the caveat has no good reason to do so, they may issue a formal document known as a warning. This warning gives the person who entered the caveat 14 days to enter a document known as an appearance. An appearance indicates that the person who entered the caveat does intend to formally challenge the will, and will mean the caveat becomes permanent and will remain in place until either the parties agree to its removal, or the Court makes an order.
Entering a caveat is a serious step that should not be taken lightly. It can lead to significant delays in administering the estate, might result in expensive and lengthy Court proceedings, and the person who enters the caveat may be liable for any costs incurred by the executor or beneficiaries if the Court rejects their claim against the will. It is essential to seek legal advice before entering a caveat to ensure that it is the appropriate course of action for your situation.
If you are considering challenging a will and want to discuss entering a caveat to give you time to investigate the merits of your claim, call 029 2082 9100 or fill out an enquiry form to speak to one of our experts.
