Challenging A Will – Caveats

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If you are considering challenging the validity of a Will, you may wish to consider issuing a caveat.
UK Family and Matrimonial
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If you are considering challenging the validity of a Will, you may wish to consider issuing a caveat.

Matthew Whipp, Senior Associate in our Private Wealth Disputes team, highlights the various steps to take and pitfalls to avoid.

What is a caveat?

A caveat prevents a grant of probate being issued, until the caveat is removed. If a grant of probate is prevented by a caveat, the estate cannot be administered, nor assets distributed.

When is it appropriate to use a caveat?

A caveat can be used in circumstances where you doubt the validity of the deceased's Will, or you suspect the person applying for the grant of probate is unsuitable.

It is not usually appropriate to use a caveat where you simply wish to challenge the Estate because you are not happy with what you have been left in a Will. An example would be an application for reasonable financial provision from the Estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

If you use a caveat where you have no reason to doubt the validity of a Will, or the person applying for the grant, you could be accused of abusing the process which may have costly consequences. You should instead use the Standing Search notification feature, whereby you will be alerted when the grant of probate is issued.

How do I issue a caveat?

The procedure for issuing a caveat is straightforward. You can issue a caveat online or by post using form PA8A. At the time of writing, the fee is £3. You will need to be careful to enter the deceased's name as accurately as possible, without any spelling mistakes, as the protection will be against the estate of the exact name you enter.

How long does my caveat last?

A caveat will initially remain active, preventing the issue of a grant for 6 months. If you do not extend the caveat, it will automatically expire. You can only extend a caveat by writing to the Leeds District Probate Registry in the last month of the caveat's 6-month period. You can extend a caveat as many times as needed, provided you have not been 'warned off'.

Can my caveat be removed without my permission?

Usually, the person applying for the grant of probate will only find out that the caveat is in place when they make the application for the grant of probate. The person wanting to obtain probate will need to send you what is known as a "warning".

The warning will be sent first to the Leeds District Probate Registry where it will be sealed and sent to the caveator. The warning should set out the details of the person applying for the grant and the Will or codicil the person intends to submit for probate.

Warning and entering an appearance

The person that lodged the caveat will have just 14 days from the date they receive the warning to do one of the following:

1) Agree to remove the caveat.

a. The advantage of this is that you should not be liable for any costs involved with dealing with the caveat;

b. The process is simple and involves emailing the Probate Registry with the original caveat number.

c. The disadvantage is that this will allow someone to apply for probate with the Will that you may allege should not be accepted.

2) Refuse to remove the caveat and enter what is known as "an appearance".

a. Entering an appearance involves drafting a document saying why the caveat is in place and why you have the right to have entered it.

b. The advantage of this is that, if the Probate Registry accept, the caveat will remain in place and only an application for a court order can remove it.

c. The disadvantage is that if the person applying for the grant makes an application to remove the caveat and are successful, you may be liable to pay their costs. If done with a solicitor this could be thousands of pounds.

Apply to the court for directions and state why you do not want the grant of probate to be granted to a particular person.

Caveats may seem simple at a glance, but there are numerous problems you may encounter, particularly if you receive a warning.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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