Contesting a Will: when and how can you use a Caveat?

Simona Morina

Article written by Simona Morina, Contested Probate Solicitor

When someone dies a Personal Representative will need to apply for a Grant to allow them to administer the estate. The Grant will provide the Personal Representative with the legal authority to deal with the deceased’s assets, debts, and expenses and at the conclusion, to distribute the deceased’s estate to the person(s) or entities entitled to benefit. In some circumstances, it may be appropriate to delay a Grant from being issued. This may be the case when:

  1. There is a doubt relating to the validity of the Will.
  2. It is believed there may be a valid Will which has not materialised.
  3. There is an objection to a Grant being provided due to a specific reason – e.g. a perceived inability on behalf of the Personal Representative to administer the estate correctly.
  4. There are concerns surrounding the making of a Will such as undue influence, fraud, or mental incapacity of the deceased.
  5. The person applying to the Court for a Grant may not necessarily be the correct person who is entitled to apply.
  6. There are concerns that the estate assets may be disposed of contrary to the intentions of the Will.

If any of the above circumstances apply, it may be appropriate to file a Caveat at the Probate Registry to prevent a Grant from being obtained. Entering a Caveat can allow time for investigations to be undertaken and the necessary legal advice to be provided.

What is a Caveat?

A Caveat is a written notice given to prevent a Grant from being obtained. This being either a Grant of Probate where there is a Will, or a Grant of Letters of Administration where there is not a Will.

The primary objective is to prevent anyone from administering the estate. A Caveat is often usefully relied upon when an investigation is required regarding the circumstances concerning the creation of a Will and/or there are concerns regarding the rightful distribution of the deceased’s estate.

Who can enter a Caveat?

Registering a Caveat can be attended to by anyone with an interest in the estate or an interest that is different to the person applying for the Grant.

In order to be effective, the Caveat must be registered with the Probate Registry. The fee is currently £3.00, and it can be registered online or by post. The Caveat will remain in place for six months and can be extended a month before it’s expiry for a further six months. If the Caveat is not extended, it will expire automatically.

The person who registers a Caveat is known as the ‘Caveator’.

How can a Caveat be challenged?

A Caveat can be ‘warned off’. This means that any person claiming an interest in the estate can issue a document known as a “Warning to Caveat” at the Probate Registry, which should state that person’s interest. Once the Warning has been served on the Caveator, the Caveator will have a period of 14 days to attend to the following options:

  1. Enter an Appearance to Warning.
  2. Withdraw the Caveat.
  3. Issue and serve a summons for directions.

The Caveator can also choose to not respond at all upon receipt of the Warning to Caveat. If no response is provided, the person serving the Warning can proceed to request the Probate Registry to remove the Caveat.

If an Appearance to Warning is entered, the Caveat becomes a permanent barrier to a Grant being obtained. In these circumstances, it can only be removed with the consent of the parties or by an order of the Court or the Probate Registry.

Entering a Caveat, a Warning to Caveat or an Appearance to a Warning can have potentially serious cost consequences if they are inappropriately registered, defended or demanded to be removed. For this reason, we recommend that legal advice is sought from a specialist solicitor as soon as becomes apparent that a challenge to an estate is likely to be made or defended.

To discuss the contents of this article further or for specific advice on a Contested Probate matter, please feel free to email me or contact us on 020 8858 6971.