Using a caveat to stop a grant of probate in a contested inheritance case
Jenny Carter in Coodes Solicitors’ Personal Disputes team explains when it is appropriate to use a caveat to stop a grant of probate.
A caveat puts a temporary stop on the grant of probate and is often used when there are questions about the validity of a Will. Someone may also enter a caveat if they are unsure whether a Will exists or if there are doubts about the deceased’s estate being administered properly.
A caveat prevents executors from administering an estate until an inheritance dispute has been resolved.
Here at Coodes we are experiencing an increase in contentious probate cases and are advising a growing number of our clients to enter a caveat to protect their position. However, it is important to understand how caveats work and when they might not be the right option.
In some circumstances, a caveat provides valuable time for an inheritance dispute to be fairly resolved. In the worst case scenario, a caveat can be misused by someone who simply wants to stall the probate process because they bear a grudge against the executors of an estate.
Who can use a caveat?
If you are unhappy with a Will or the way in which the executors are administering the estate and think you are in a position to use a caveat, it is important to get specialist legal advice. Your lawyer can explain whether or not you have a valid claim and, if appropriate, can then 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. If you are a dependent who has not been adequately provided for in your parent’s Will, for example, you should not lodge a caveat. 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.
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. The caveat will remain in place for six months and can be renewed within a month of expiring.
While the caveat is lodged, the executors cannot secure grant of probate and should not take any further steps towards administering the estate.
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Can I overturn a caveat?
Entering a caveat is often the most appropriate action to take if you have a valid claim to a Will. However, we have advised executors of estates who have been faced with caveats that are in place for no good reason.
If you are an executor and do not feel the caveat should be in place, you can issue a formal application called a ‘warning’ to the Probate Registry. 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’, which will set out the basis upon which they are maintaining the caveat.
Once an ‘appearance’ has been entered, the caveat will remain frozen in place unless the parties are able to come to an agreement that the caveat is removed. If no agreement can be reached, it is important to seek legal advice as soon as possible as 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, get specialist legal advice to ensure you are acting in an appropriate way. The courts will look very dimly indeed on anyone who is found to be acting unreasonably.