Probate has been stopped by a caveat, can I remove it?
The issue of caveats arises frequently in will disputes and contentious probate cases.
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 extracted.
The lodging of a caveat is usually a sign that someone is trying to contest a will.
Often a party will lodge a caveat because of their genuine concerns about the validity of a will. 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. Sometimes, disappointed family members who have no grounds to contest a will lodge 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.
How do I remove a Caveat?
The entry of the caveat normally leads to an exchange of correspondence between the personal representatives and the caveator (or their respective solicitors). During this period, the party who lodged the caveat 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.
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 would then have the opportunity to file what is called an appearance. 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 quickest 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 If agreement cannot be reached for the removal and the caveat is not withdrawn, court proceedings would need to be commenced to have it removed.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/or if you have entered a caveat, or if you are an executor faced with the entry of a caveat, you should take specialist legal advice at the earliest opportunity.
Please contact our will dispute solicitors on 01384 340539 for a no obligation telephone consultation. We can sometimes act for clients who want to contest a will or commence an inheritance dispute/probate dispute on a no win no fee basis.
Alternatively, please e-mail us at email@example.com providing a brief summary of the issues you wish to discuss with us, along with your contact details.