Caveats
A caveat is a formal notice entered at the Probate Registry to ensure that that no grant or letters of administration are to be sealed in the deceased’s estate without notice to the person who has applied for the Caveat.
Once entered a Caveat remains in place for 6 months but you can apply for it to be extended for further periods of 6 months at a time (NCPR Rule 44(2)).
When Should a Caveat Be Used?
Where a person wishes to prevent probate being granted to an unfit Executor/Administrator, 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.
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. If the validity of the Will is not being challenged or the fitness of the Executor/Administrator to act then the caveat procedure should not be used. To protect a potential claimant under the inheritance act a standing search should be applied for.
Standing Searches
A standing search will notify the interested party when an application for a Grant of Probate or Letters of Administration 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. A standing search lasts for six months unless extended.
If a Grant of Probate or Letters of Administration have already been obtained, a copy of the Testator’s Will and a copy of the Grant can be obtained from the local Probate Registry by undertaking a standing search.
Removing/Challenging a Caveat
The person who lodged the caveat (the caveator) can remove it at any time by notifying the Probate Registry in writing.
An Executor or Administrator can also have a caveat removed if they obtain the caveator’s consent. In this case, the Executor/Administrator submits a request, along with written consent, to the Probate Registry, and the caveat will be withdrawn.
If consent cannot be obtained, a warning (Form FR13) should be sent to the Probate Registry.
The caveator then has 8 days to respond by entering an appearance, either in person, by post, or through a solicitor.
In the appearance, the caveator must state:
- Their interest in the estate, or
- Reasons why the grant should not be sealed.
If the caveator does not respond within this period, the person who issued the warning can file an affidavit with the Probate Registry, and the caveat will cease to have effect.
Where an appearance is entered and the caveator does not consent to removal, a probate action may be necessary. A District Judge can then order the caveat to be removed.
In some cases, an estate asset, such as a house, may need to be sold before all parties reach agreement. A limited grant can be applied for, allowing the sale to proceed, with the funds held pending agreement among all parties or a court order.
Responding to a Warning
If you receive a warning challenging your caveat, it is important to act promptly. The warning will come from the Leeds District Probate Registry and requires you to enter an appearance.
An appearance does not mean you must attend the Registry in person. You can respond by post or through a solicitor, using the correct form.
In your appearance, you should clearly state either:
Your interest in the estate, or
Reasons why the Grant of Probate should not be sealed.
If you fail to respond within the required period, your caveat will be removed. If you do respond but the parties cannot agree to remove the caveat, it may be necessary to begin court proceedings.
Receiving a warning can be complex, so it is strongly recommended to seek legal advice immediately to ensure your rights are protected.
If you would like to instruct us to draft and enter a caveat on your behalf, to take steps to challenge a caveat, or if you have received a warning and are looking for advise, please do not hesitate to contact our team for professional assistance.
We can take instructions in person, by telephone or remotely via Microsoft Teams or Zoom.