Will disputes: what is a Caveat?
The issue of caveats comes up frequently in contentious probate disputes.
A caveat is a formal notice which is lodged at the probate registry which prevents a grant of probate or a grant of letters of administration being obtained in an estate.
It can often come as a surprise to the executors to discover that an application for probate has been rejected due to a caveat being lodged.
Sometimes, the use of a caveat is a precursor to a contentious probate claim. For example a caveat may be lodged because there are genuine concerns about the validity of a will, perhaps because the testator lacked testamentary capacity. Occasionally, the caveat process is abused and caveats are sometimes lodged when parties have no right to do so. We often see parties who don’t have any grounds to contest a will lodging caveats simply because they feel a sense of injustice from being excluded from a will or because they feel that the will is “unfair”. 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 caveator might make further enquiries regarding the disputed will or obtain medical records for the deceased. If the caveator refuses to withdraw the caveat and if agreement cannot be reached, the personal representatives would normally want to take formal steps to try and remove the caveat.
The personal representatives may then 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 either lodge 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 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/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.
Alternatively, please e-mail us at firstname.lastname@example.org providing a brief summary of the issues you wish to discuss with us, along with your contact details.