Will Disputes: Using a Caveat to Prevent a Grant of Probate
June 18th 2024The death of a loved one can be a deeply emotional and stressful time. When coupled with concerns about the validity of their Will, the situation can become even more challenging. Fortunately, there are practical steps you can take to protect your interests if you find yourself questioning the legitimacy of a Will. One such step is entering a Caveat.
Rebecca Armstrong, Senior Associate Solicitor in our Will and Inheritance Dispute Team, reports.
What is a Caveat in Probate?
A Caveat is a formal, written notice used to prevent a grant of representation (probate or administration) from being issued. This is particularly useful if you believe the Will in question is invalid or if you have concerns about the suitability of the proposed personal representative/executor.
A Caveat stops a grant of representation being issued for six months. A Caveat can be lodged online via the GOV.UK website for a small fee and can be extended by applying to the Probate Registry.
The person entering the Caveat, known as the Caveator, can be anyone with an interest in the estate.
Lodging a Caveat without a legitimate interest can be inappropriate and may lead to complications including court proceedings against you. We would always recommend seeking independent legal advice before entering a Caveat to ensure a Caveat is appropriate for your situation.
When is it appropriate to Lodge a Caveat
1. Validity of the Will: Concerns about the validity of a Will are the most common reasons for entering a Caveat. This can include:
- Mental Capacity – doubts about whether the testator (person making the Will) had the necessary capacity to make the Will
- Undue Influence – suspicions that the testator was pressured into making the Will so that it does not reflect their true intentions
- Fraud or Forgery – believes that the Will is fraudulent or forged, which can be more common with DIY/homemade Wills
- Later Wills – suspicions that there is a more recent Will which supersedes the one presented.
2. Concerns about the Personal Representative: Issues regarding the suitability of the proposed executor or administrator such as current or past financial instability (bankruptcy), criminal convictions (i.e. fraud) or incapacity (i.e. medical conditions such as dementia).
When Not to Lodge a Caveat
A Caveat should not be used if your intention is to make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. Using a Caveat in this context is considered an abuse of process and can result in a wasted costs order against the Caveator.
Challenge to a Caveat Once a Caveat is lodged, it can be challenged by a third party, often the personal representative or beneficiary, through a process known as “warning off”. This involves filing a Warning at the Probate Registry requiring you to either withdraw your Caveat or enter an Appearance.
- Entering an Appearance: If you chose not to withdraw your caveat, you can enter an Appearance. This sets out your interest in the estate and your reasons for objecting to the grant. This action makes the Caveat permanent.
- Legal risks: Once a Caveat has been made permanent, it can only be removed by agreement or a court order. It is therefore likely to lead to court proceedings in the Chancery Division, where adverse costs orders may be made. It is therefore crucial to seek independent legal advice as soon as you receive a Warning and before entering an Appearance.
Seek Legal Advice
If you have concerns about a Will or the proposed personal representatives and are considering entering a Caveat, or you have been served with a Warning, we would strongly advise seeking independent legal advice at the earliest opportunity.
If you wish to seek advice on Caveats or Warnings, please contact Rebecca, part of our specialist Will and Inheritance Dispute Team on 01228 516666 or click here to send her an email.