What is a Caveat ?
When a dispute arises in a probate matter people may issue what is known as a Caveat. A Caveat is issued by simply completing the relevant form and filing this with the Probate Registry. They should be used when a party intends to question the validity of the Deceased’s Will or the suitability of the Executor to act in this position. Once registered the effect of the Caveat is that the Probate Registry will not issue a Grant of Probate or Letters of Administration until it is removed. If you are the party wanting to obtain the Grant of Probate or Letters of Administration then you will need to have the Caveat removed before you are able to do so. The most effective way of doing this is to address the concerns of the person that has registered the Caveat and agree that they will remove it.
However, often that will not be possible which essentially leaves an estate in limbo with no action being taken and no one with the legal responsibility to deal with the assets within the estate. This can be detrimental to any assets within the estate such as a property that requires maintenance.
How do I remove a Caveat ?
If you cannot agree that a Caveat will be removed the Executors of the Will, or person entitled to apply for Letters of Administration will need to consider how they take the matter forward.
The way to do this is to issue the party with the Caveat with what is known as a Warning. Again this is also a relatively simple process of issuing a form at the Probate Registry which then needs to be served on the party with the Caveat. Once they have been served with this Warning they will then have 8 days to issue an Appearance at the Probate Registry. This is a written document in which they must give details of why the party intends to question the validity of the Will or the suitability of the Executor.
If the party who has registered the Caveat fails to issue an Appearance within the 8 days the Caveat will be removed and the Executor will be free to obtain a Grant of Probate.
What are the consequences of issuing an Appearance?
If an Appearance is issued within the 8 days then the Probate Registry will not issue a Grant of Probate without an order from the Court regardless of what is agreed between the parties. This will result in either one or both parties having to make an application to court to resolve the matter. These applications can however be more difficult than a normal application to Court to settle a matter because the Court may not simply agree with what has been agreed between the parties as it will also consider the validity of the Will and the wishes of the Deceased. Further information on the applications that you can make to court can be found here.
Once proceedings have been issued the Court also has the power to decide who should meet the legal costs of these proceedings. People often think that the cost of the dispute will be met by the estate but this is not always the case. The general position with litigation is that the unsuccessful party pays the winners costs which can result in the parties being personally liable for these costs. In probate disputes the court may go against this rule if it considers that the claim is the fault of the deceased for example where there is uncertainty regarding the Will or if the circumstances of the case raise grounds for investigation.
In these circumstances the court may be willing to order the costs from the estate. However it should be remembered the court do have complete discretion on the issue of legal costs and can order that party be responsible for legal costs if it considers that the party has acted unreasonably. The parties should also consider that even if the costs are taken from the estate this will reduce the amount available for settlement and distribution to the beneficiaries.
How should I proceed ?
In light of the above both an Executor and the party with Caveat should give careful consideration as to whether or not a Warning or Appearance should be issued . If either are issued the parties could find themselves in a position where an application to court is needed in order to decide the issues raised by the parties or to simple ratify any agreement that has been reached. This can be particularly difficult if the Executors cannot access the funds within the estate in order to fund any legal action and can leave the parties in the position where administration of the estate cannot be progressed.
Ideally once a Caveat has been issued both parties should take legal advice upon the merits of any potential claim regarding the Will or appointment of the Executor’s . This should then be used to reach an amicable agreement between the parties meaning that the Caveat can then be removed, the estate administrated and the agreement adhered to.
If the party who has issued a Caveat has received a Warning then they should take immediate legal advice in order to ensure that the merits of their claim can be considered before issuing an Appearance. This can often be difficult with only 8 days to respond to the Warning. For this reason it’s often in the interests of all the parties to have the merits of the claim considered much earlier and to begin negotiations without this pressure of time.
If you are an Executor and have been issued with a Caveat it’s sensible to deal with this by requesting full details of the potential claim, addressing these concerns and either requesting that the Caveat be removed or attempting to settle the matter before taking the step of issuing a Warning.
As stated above, the parties can be personally responsible for their own and the other sides legal costs if the court feels that they have acted unreasonably. This could include refusing to remove a Caveat or issuing an Appearance when you have no reasonable prospects of being successful in your claim.
NEXT ARTICLE: Contentious Probate: Settling Probate and disputed Wills
If you have issued a Caveat or are an Executor who is unable to obtain probate due to a Caveat being in place and would like to discuss this further please contact stephen.stewart@elselaw.co.uk or call the office on 01283 526 200.