A caveat is a formal notice which is lodged at the probate registry which stops a grant of probate or a grant of letters of administration being obtained in an estate.
Many clients are surprised to discover that a caveat has been lodged. The entry of the caveat will put a stop to the administration of the estate and is usually a signal that a will dispute claim will follow.
Often a party will lodge a caveat because of their genuine concerns about the validity of a will, such claims can include.
- Claims under the Inheritance (Provision for Family and Dependents) Act 1975;
- Claims concerning challenging a will on grounds including mental capacity, testamentary intention, knowledge and approval or as a result of undue influence;
- Disputes regarding fraudulent and/or negligent trustees or executors;
- Actions to remove and/or substitute executors and trustees;
- Disputes arising due to negligently drafted wills and professional negligence claims;
- Actions concerning the construction of wills and trusts.
By their very nature, probate disputes are rarely without a personal element. We fully appreciate the difficulties associated with this and approach each matter in a sympathetic and sensitive manner.
However, the caveat process is sometimes abused and caveats are often used to buy time or where the party has no right to lodge a caveat.
We often see parties who don’t have any grounds to contest a will lodging a caveat simply because they consider that the will is “unfair” or “unjust”. Of course, this is not a valid reason to contest a will or indeed to lodge a caveat.
A caveat will remain in force for 6 months until it is extended, or removed.
The entry of the caveat normally leads to an exchange of correspondence between the solicitors of the personal representatives and the party who lodged the caveat (“the Caveator”).
During this period, the Caveator might carry out further investigations such as obtaining medical records for the deceased. If there appears to be a valid will dispute, the caveat would normally remain in place whilst the dispute is resolved or litigated. If the caveat has been wrongfully entered, the personal representatives would normally want to take formal steps to try and remove the caveat.
How do I remove a caveat?
The personal representatives will first enter a warning to the caveat. In order to do so, a warning form must be completed and filed at the probate registry. A copy of the formal warning is then served on the Caveator.
The Caveator will then have 14 days to lodge what is called an appearance if they want to keep the caveat in place.
An appearance is a document setting the Caveator’s contrary interest in the estate. This basically means that the Caveator must have a potential interest in the estate if the disputed will is found to be invalid.
If the Caveator fails to enter an appearance, their caveat will be removed, and the personal representatives can then apply for a grant of probate.
If the Caveator does enter an appearance, then the caveat will remain in place. The only way for it to then be removed is for both parties to consent to its removal. If agreement cannot be reached for the removal and the caveat is not withdrawn, court proceedings would need to be commenced to have it removed.
Caveats should not be used by a party contemplating a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).
Commencing a claim under the Act is not a challenge to the Will itself but to the distribution of the estate. If a party considering a claim under the Act lodges a caveat, this would be an abuse of process and the caveat would be removed with likely costs consequences for the Caveator.
If you have concerns about the validity of a will and wants to discuss caveats or any aspects of a potential will dispute or if you are an executor faced with the entry of a caveat; please contact us on 01207.655178 for an initial free consultation.