Most people will never have heard of a caveat and so you can be forgiven for not knowing what one is or understanding or appreciating why you might need one but in potential probate disputes they can be your first “line of defence” and so it is important to understand what a caveat is and when you should consider applying for one.
What is a caveat?
Whilst a grant of probate (or letters of administration if there is no will) will not be necessary in order to administer every deceased’s estate, in the majority of cases executors will need to obtain a grant to do so. A caveat places a temporary suspension on the executor’s ability to be able to obtain a grant. Initially, the caveat remains in place (unless successfully removed following an application to warn off – see below) for 6 months but this can be extended shortly before the expiry of the initial period for a further 6 months.
Why should I apply for a caveat?
Where you have a claim arising out of someone’s death it is often helpful, indeed necessary to have a period of time in which to investigate the potential claim. Initial investigations in relation to claims may, in some cases, lead to a conclusion that the claim does not have sufficient merit to proceed with it and in others it may be possible to reach an agreement with the executors and/or beneficiaries as regards the claim without the need for the issue of proceedings. Even in those cases where it is likely that proceedings will need to be issued this initial period of time will assist in ensuring that the proceedings are conducted in as efficient manner as possible.
A caveat is not appropriate in all circumstances. It should not be used, for example, in cases where the claim being investigated is a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. However, it can be used in all claims involving the question of validity of the will whether that relates to a failure to comply with the formal requirements of the Wills Act 1837 or some other grounds such as undue influence or lack of testamentary capacity or want and knowledge of approval of the will.
A caveat can also be used in relation to claims which relate to the identity of the executor himself – for example, if he is the incorrect person to apply for the grant and/or is not the most appropriate person to administer the estate.
How do I apply for a caveat?
Caveats are easy to apply for with the application being made by post or online. A small fee is payable for each application (currently £3 having recently been reduced from £20).
To apply you will need the full name, date of death and last address of the deceased. You also need to be 18 or over and have a home address in England or Wales.
It is very important to make sure that the name of the deceased is accurate as the caveat will only serve to operate in respect of the deceased as named therein.
Any application to extend the caveat will need to be done by post and an additional fee will be payable.
Applications to warn off
Once obtained a caveat will remain in place for the initial 6 month period (and any further extended period) unless the executor successfully challenges the same by way of an application to warn off setting out reasons as to why he considers the caveat should not remain in place. The application must be submitted to the Leeds District Probate Registry.
Where such an application is issued, the person who obtained the caveat would need to provide detailed reasons as to why the caveat should remain in place. This is done by entering what is known as an appearance. Time periods for entering of appearances are very short and very strict. If no appearance has been entered during the stated time periods the caveat will automatically be removed.
If an appearance is submitted no grant can then be issued without a court order. The caveat would therefore remain in place until the issues are resolved either by way of consent between the parties or formal court order.
Whilst the obtaining of a caveat is an important and helpful step to be taken in probate disputes, as indicated it is not appropriate in every case and careful consideration should be given as to whether to obtain one.
It is also important that legal advice is obtained if any application to warn off the caveat is made. If the caveat has been obtained without good reason and following the filing of an appearance, the executor may well then issue proceedings seeking the removal of the same. If you do not have good grounds for having obtained the caveat in the first place and do not agree to its removal, you are likely to end up being ordered to pay the executor’s costs if he successfully obtains an order seeking its removal. Legal advice on your position will therefore be of considerable importance.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.