Caveats, Warning Off and Appearances
If there is an inheritance dispute, for example about the validity of a Will or who can apply for probate a Caveat can be very important.
What is a Caveat?
One way to think of a Caveat is as a ‘block’ that prevents others from progressing an application for a Grant of Representation on the estate that is in dispute.
How long does a Caveat last?
A caveat lasts for six months at first, but it can be extended if necessary. You should refer to the “Warnings” and “Appearance” procedures set out below.
How much does a Caveat cost?
Whilst a very powerful tool in the armoury of a party to a potential inheritance dispute, a Caveat is in fact low cost. The probate registry fee to enter a caveat is currently just £3.
When should I apply for a Caveat?
If you have concerns about the validity of a Will, or the way in which an estate is being administered, it is important to act quickly to stop the issue of a Grant of Representation (known as Grant of Probate, if there is a Will or Letters of Administration if there is no Will or if there is no valid appointment of executors in the Will). A Caveat stops the probate registry from issuing the Grant of Representation and can provide an important tactical advantage. The aim is usually to prevent an estate being distributed in accordance with the terms of the disputed Will.
Similarly, if you have concerns about the person applying for the Grant of Representation it is important to act swiftly with a Caveat to prevent the unsuitable person from obtaining a Grant in their name. For example, a relative may be applying for Letters of Administration by asserting no Will was in place, but it may be that a Will has been found naming an executor, whose entitlement to a Grant would be higher than that of the relative applicant.
Information you need to enter a Caveat
You need:
- the full name of the person who has died and any other names by which they were known.
- the exact date of death on the death certificate.
- the last address of the person who has died.
This information is usually (and best) gathered from the death certificate.
What if I do not have the death certificate
You can enter a Caveat without the death certificate, but you should amend the Caveat with the exact name and date of death / other details recorded on the official death certificate when you have obtained one.
The probate application might not be stopped if the date of death entered on the Caveat does not match the date shown on the death certificate.
What happens next?
A Caveat gives breathing space that can be used to investigate the concerns and explore the way forward.
It is stated on the gov.uk website that “Entering a caveat can lead to legal action and legal costs. You should try to come to an agreement with the person applying for probate first.”
Consideration needs to be given to what investigative measures are appropriate for your case and whether the evidence when gathered is supportive of a claim.
Will others know I have entered a Caveat?
No, not automatically. The Probate Registry can only notify an applicant of the existence of a Caveat once they have submitted their application for a Grant of Representation. Alternatively, the applicant can submit an express Caveat search enquiry with the Probate Registry in advance.
Should I draw attention to the existence of a Caveat?
Investigating the Will validity issues / concerns about the suitability of the applicant and exploring the way forward will involve liaising with others and it can be sensible to draw attention to the Caveat at the same time.
Warnings
If the opponent probate applicant disagrees with your Caveat, they might:
- come to an agreement with you and ask you to withdraw the Caveat.
- issue a formal ‘warning’.
A Warning calls upon you as the Caveator (person who lodged the Caveat) to justify your Caveat. Once a Warning is served you have 14 days to respond to the Warning – a step known as entering an Appearance (see below). If you do not respond, the Caveat can be removed, and a Grant of Representation may be issued to the original applicant.
Appearance
An Appearance sets out your reasons why the Caveat should remain in place. Lodging an Appearance with the Probate Registry will mean your Caveat becomes permanent and is not capable of being removed unless by court order or the agreement of the parties.
There are costs implications of entering an Appearance and you could be required to pay the opponent’s costs in certain circumstances. It is recommended that you seek legal advice before entering an Appearance.