A caveat: Stopping grant of probate in a contested inheritance case

A caveat is a notice which puts a temporary stop to a grant of probate being extracted in a deceased person’s estate. Caveats can be used when a family member or potential beneficiary has questions about the validity of a will. They prevent executors from administering an estate until the inheritance dispute has been resolved.

At Coodes, we are experiencing an increase in inheritance disputes. Therefore, we are advising a growing number of our clients to enter a caveat to protect their position. However, it is important to understand how they work and when it is appropriate to enter one.

In some circumstances, a caveat provides valuable time to investigate the validity of a will. They mitigate the risk that the deceased person’s estate might be distributed before those investigations have concluded. However, a caveat can be misused by those wanting to stall the probate process because they bear a grudge against the executors of the estate.

Who can use a caveat?

If you are unhappy with the provisions of a family member’s will and have concerns about its validity, it is important to get specialist legal advice. Your lawyer can explain whether you have a valid claim and, if appropriate, enter a caveat on your behalf.

It is important to note that caveats are not designed for claims under the Inheritance (Provision for Family and Dependants) Act 1975. You will need to seek legal advice on taking a different route.

It is also not appropriate to enter a caveat simply to frustrate or delay the administration of the estate without any legal justification for doing so. This would constitute an abuse of process, and could result in adverse costs consequences being imposed as a penalty.

What happens when a caveat is lodged?

For a small fee, you can lodge a caveat with your district Probate Registry or instruct a lawyer to do so on your behalf. This will remain in place for a period of six months and can be renewed as required.

While the caveat is lodged, the executors cannot extract a grant of probate and should not take any further steps towards administering the estate. This ensures that the estate is protected pending resolution of the dispute which has arisen.

Can I overturn a caveat?

Entering a caveat is often the most appropriate action to take if you have a valid claim regarding the validity of a will. However, in circumstances where it is being maintained unnecessarily or inappropriately, executors may need to take steps to remove it.

It is possible to issue a formal application called a ‘Warning’ to the Probate Registry. This sets out your objection to the caveat being maintained. The warning is then sent to the person who lodged the caveat. The individual who entered the caveat then has 14 days to respond by entering what is known as an ‘Appearance’. This must set out the basis upon which they are maintaining the caveat. The caveat will be automatically removed by the Probate Registry if an appearance is not filed within the 14-day deadline. The result is that the administration of the estate can then proceed.

If an appearance is entered, the caveat will remain frozen in place unless:

• the parties are able to come to an agreement that it should be removed; or
• the court orders that it should be removed.

If no agreement can be reached, it is important to seek legal advice as soon as possible. There may be no option but to issue an application to the court for the removal of the caveat.

If an application to the court is required, matters become more complicated and potentially more costly. That is because there is a risk that the court may make an adverse costs order if it finds the administration process had been frustrated by the wrongful entering of a caveat.

Whether you are seeking to overturn or maintain a caveat, it is important to seek specialist legal advice. The courts will look very dimly indeed on anyone who is found to be acting unreasonably.

For advice on these issues, please contact Jenny Carter of the Personal Disputes team at Coodes Solicitors. Call 01566 770008 or email jenny.carter@coodes.co.uk