Lodders’ private client specialist explains how a ‘caveat’ to temporarily prevent anyone being able to obtain a grant of probate can be an appropriate step to take if there is a concern about the validity of a deceased’s persons will.
If a family member or beneficiary is concerned about the validity of a deceased person’s will, often it will be appropriate for a ‘caveat’ to be entered at the probate registry on their behalf. The caveat is a notice to prevent anyone being able to obtain a grant of probate in the deceased’s estate, which means that the estate cannot be administered while the caveat is in place. If we act for them, then we then have the time to make investigations to see if there is any merit in bringing a claim. It also gives the client time to digest what has happened and to think about what they want to do, whilst protecting their position to bring a claim if they wish to.
To enter a caveat is a straightforward application and the fee is £20. Once entered, it remains in force for six months but it may be renewed every six months.
If after completing the enquiries we feel there is a case to answer, we should either take steps to negotiate a settlement or bring a contentious probate claim. If there is no case to answer the caveat should be removed to allow the estate to be administered.
A caveat should not be used if the client wishes to bring a claim under the ‘Inheritance (Provision for Family and Dependants) Act 1975’, which is an act to allow people to challenge the distribution of the estate (rather than the validity of the will) if they believe reasonable financial provision has not been made for them. Where a caveat is entered in these circumstances it is an abuse of process.
If a caveat is entered in these circumstances, or if it appears that the caveat should no longer be in place, then the executors or ultimate beneficiaries of the will could seek for it to be removed (known as ‘warning off’). If the caveat is warned off then the person who entered it (the caveator) would need to ensure it remains in place by ‘entering an appearance’. This makes it permanent which means it is only possible for it to be removed by the court. Whether a caveat continues to be appropriate will depend upon the circumstances and it needs to be kept under review. Advice should be taken, as if an appearance is entered then caveator could face costs penalties from the court if the court feels it should not have been. Advice should also be taken by the executors or ultimate beneficiaries as they could face costs penalties if the court believes they have behaved unreasonably by warning off the caveat too soon, or at all.Contact us
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