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Insights

Caveat – Stop Probate

Posted on 16th April 2020 in Dispute Resolution

Posted by

Martin Laver

Partner and Solicitor
Caveat – Stop Probate

In most cases, a Grant of Probate is required for the estate to be dealt with and administered. Without the Grant of Probate, an executor will not be able to sell any property which belongs to the deceased, nor will they have the authority to deal with the estate’s assets.

Preventing probate being granted will give you time to gather relevant information to your potential claim and/or enable you to prepare your letter before claim (a letter setting out the grounds of your claim prior to issuing any formal Court proceedings).

When should I file a caveat?

If you want to dispute a Will because you have concerns that it is invalid, it may be appropriate to file a caveat to prevent the executor from obtaining the Grant of Probate from the Probate Registry. This is usually used when considering one of the following claims:

  • The testator (deceased) did not have testamentary capacity to make the Will;
  • The Will is fraudulent;
  • The testator was unduly influenced into making the Will; or
  • The testator had a lack of knowledge and approval.

We suggest that you obtain legal advice prior to filing a caveat, or, at least when preparing your claim.

The impact of a caveat

If a caveat is filed with the Probate Registry, probate cannot be granted and so the executors will not have the authority to deal with the estate and administer it in accordance with the Will.

The existence of the caveat will not be known to the executor(s) until an application for a Grant of Probate is made. Once the application is made, the executor will be informed that it has been blocked by the caveator (person who filed the caveat).

A caveat lasts for six months and should be renewed if necessary.

What happens next?

If the executor’s application for the Grant of Probate has been blocked, they are likely to enter a ‘warning’. This warning is an objection to the caveat and can be filed with the Probate Registry without charge.

A warning will be served on the caveator and will require the caveator to enter an ‘appearance’ within 14 days. If no appearance is entered, the caveat will be removed by the Probate Registry and the Grant of Probate will be issued.

In order to keep the caveat in place, the caveator must enter an appearance within 14 days. The appearance is a further document to file with the Probate Registry and personal appearance is not required.

Once an appearance is entered, the caveat becomes permanent. The matter now becomes more complicated and it is likely that one of three possible scenarios will play out from here:

  • The parties negotiate and agree a settlement; or
  • The caveator commences court proceedings disputing the Will; or
  • The executor commences court proceedings seeking an Order that the caveat is removed.

We suggest that legal advice is sought before an appearance is entered. Once an appearance is entered, it is possible that you could be liable for your own costs and the executor’s costs if you are unsuccessful.

The Probate Registry charge a fee of £20 to enter a caveat. We offer a fixed fee of £200 plus VAT and fee to:

  • Advise whether a caveat is appropriate for you; and
  • Filing the caveat with the Probate Registry on your behalf.

If you would like advice on these issues, please contact a member of our team 01392 207020 or willdisputes@tozers.co.uk

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