Caveats

What is a Caveat and how long does it last?

A caveat is a notice that no grant is to be sealed in the testator’s estate without notice to the person who has applied for the Caveat. Once entered a Caveat last six months but you can apply for it to be extended (NCPR Rule 44(2)).

When should a caveat be used ? 

Where a person wishes to prevent a grant of probate to an unfit executor and/or challenge the Deceased’s Will their first step should be to obtain legal advice to consider the claim and the merits of lodging a caveat. A Caveat generally precludes a grant being made in respect of an estate, therefore preventing the executor from obtaining authority to administer the estate and thus prevents lawful distribution. A caveat may be entered, to provide a person time to investigate potential grounds for opposing the grant, to give an interested party in the estate opportunity of raising any questions arising in respect of the grant before a summons or as a preliminary step to a probate claim. d settings.

When should a caveat not be used ?

A caveat should not be used where a person is bringing a claim on the estate under the Inheritance Act. In an Inheritance Act claim the claimant is making a claim for provision from the estate and where the validity of the will is not being challenged or the fitness of the executor to act the caveat procedure should not be used. To protect a potential claimant under the inheritance act a standing search should be applied for. 

What is a Standing Search ?

A standing search will notify the applicant when a Grant of Representation better known as grant of probate has been made. This information is extremely important for a claimant bringing a claim under the Inheritance Act as Section 4 of the act states that applications must be made within 6 months from the date a Grant of Representation. If a grant of probate has obtained a copy of the testators will and the grant can be obtained from the local Probate Registry by undertaking a standing search. A standing search lasts for six months.

 Can you remove a Caveat ?

Caveats generally remain in force for six months, unless the registrar orders otherwise, although they can be extended. If you enter a Caveat you may remove it at any time by writing to the Registry.

How do you remove a Caveat to enable a grant of probate ?

There are a number of ways around this problem. A caveat can be challeneged by sending a “warning” to the Leeds District Probate Registry using form FR13. Where a caveat can not be removed by agreement between the parties or by sending a warning to the caveator a probate action can be commenced and a District Judge can order the caveat be removed. However it maybe that a party wants to sell a house or a particular estate asset to preserve the estate and has no intention of distributing the estate until agreement has been reached with all interested parties. In this scenario it would be prudent to consider an application for a limited grant to enable the sale of x and the funds to be held pending agreement of all the parties or order of the Court. 

How do you respond a Warning to caveator ?

For a caveat to remain in place the caveator will have to enter an “appearance”at the appropriate probate registry in person (Or more commonly since the COVID 19 pandemic by post) or by solicitor. The caveator has eight days (starting with the date of service of the warning) in which to enter an appearance. The Caveator must set out what interest they have in the estate contrary of the person issuing the warning; or if the caveator has no contrary interest but wishes to show cause against the sealing of a grant, to issue and serve in the same period a summons returnable before the a registrar. 

If the Caveator does not respond to a warning what is the next step ?

If their is no response to a warning the person warning can file and affadavit in the Probate Registry setting out the position and the caveat will cease to have effect.

How do you remove a Caveat once an Appearance has been entered ?

If you cannot obtain consent from the caveator for the caveats removal then you will need to take legal advice concerning a probate action as an order from the Court for the withdrawal of the caveat will be necessary. 

Caveats can be entered at any Local Probate Registry. If you would like to instruct us to draft and enter a caveat on your behalf or take steps to challenge a caveat please do not hesitate to contact us. We can take instructions via Zoom, telephone or in person.

 

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Clodes Solicitors
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A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

If a loved one has not made reasonable financial provision for you in their will leaving you in a position of hardship contact us today for advice about potentially making an inheritance act claim https://t.co/JxtxcN3cyR https://t.co/hPBmmcsyA0 CLODESSOLICITOR photo

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