Caveats – a sword or a shield…

What is a Caveat?

A caveat is a written notice given by someone (the caveator) which alerts the probate registry not to issue a grant of representation until the caveat is removed.

A Grant of representation is either a Grant of probate (where there is a Will) or Grant of letters of administration (where there is no Will). The Grant is a document obtained from the court which gives legal authority to the personal representatives (PR) entrusted to deal with the deceased’s estate. A caveat can, until removed, prevent administration of the estate as the PR would not have the authority to deal with the estate without the Grant.

If there is an urgent need to achieve a limited and particular purpose in the estate, then a limited Grant can still be issued. This is usually to protect or preserve the estate and allows the PRs to collect estate assets, but no distributions can be made.

Why would you enter a caveat?

There are a number of reasons you may want to prevent an application for a Grant; the most common reasons are listed below:

  • You have concerns that the deceased did not have the mental capacity to make the Will or was being influenced by someone else creating doubts over the validity of the Will
  • You are concerned that the PR(s) are not suitable to carry out the instructions in the Will or the administration of the estate
  • There is a more recent Will
  • You think the person applying for the Grant is not eligible to apply if there is no Will
  • You are entitled to apply but have not been included in the application
  • The deceased got married or entered into a civil partnership after the Will was signed potentially revoking the Will

On occasion the system is abused, and a caveat is entered where it should not be. You should not, for example, enter a caveat in order to delay administration without legal grounds to do so.

Similarly, you should not enter a caveat when pursuing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Inheritance Act claims must be made within 6 months of the Grant of probate being issued and so, without a Grant (as the caveat prevents this) you would be unable to issue a claim. The correct procedure in this case is to issue a standing search which notifies the claimant that the Grant has been issued.

How to enter a caveat?

You can enter a caveat online, personally by appointment at your local probate registry or by post providing the fee of £3. The caveat lasts for 6 months to begin with and it can be renewed indefinitely unless it is made permanent (see below).

Unless the caveator notifies the PRs that they have entered a caveat (they are not required to) the PRs are unlikely to discover the caveat until they apply for the Grant. At which point the probate registry will inform them that the Grant cannot be issued.

Can a caveat be challenged?

If, for example, Mr B enters a caveat, he himself can have the caveat removed by simply asking the probate registry to do so. However, if the PRs, Mrs S and Mr N, decide that the caveat should not be in place and they wish to remove it, they have to serve a formal document called a ‘warning’ on Mr B.

If Mr B is determined to prevent a Grant being issued, he then has 14 days to enter another formal document called an ‘appearance’. At this stage Mr B will have to explain why the caveat was entered and state his interest in the estate. If the probate registry accept that the caveat is justified this has the effect of ‘sealing’ it and effectively making it permanent. After it is sealed the caveat can only be removed by Mr B, if a Judge orders its removal, if the Grant is issued to Mr B or a probate action is begun.

But be careful…it is an abuse of process to leave a caveat in place for too long and so, a probate claim should either be made if there are ongoing concerns or the caveat should be removed.

Renouncing your executorship

If you are named in the Will as executor or the deceased has died without a Will and you are entitled to letters of administration and you anticipate a dispute against the estate, but do not want to be responsible for handling it, you can renounce your role. However, be aware that you will lose the right to renounce if the Grant has already been issued; you will be named on the Grant and will be required to carry out your duties. You will also be unable to renounce the role if you have intermeddled in the estate. This means you have done things that a PR might do such as, handled the deceased’s assets or held yourself out to be an executor.

A deed of renunciation is yet another formal document and legal advice should be sought to ensure it is drafted properly.

If a caveat has been entered or you are concerned one might be entered against an estate you are dealing with or you require advice in order to enter a caveat yourself, please contact us.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Edward Jones
Legal Director, Dispute Resolution
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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