Issuing a caveat (objection) is a procedure used to stop a probate application for a grant of Probate or Letters of Administration from being issued until the caveator (the person who has made the caveat/ objection) has the chance to discuss matters with the people applying for the grant Probate. Alternatively, the caveator can make his or her case to the Court direct. We can organise help with Caveats if you wish to challenge a Will.
We do strongly recommend thinking hard (but not delaying) before you try to stop a probate application, as caveats can indirectly create considerable costs which can bounce back on you if the Court feels you had no or a poor case. If it goes as far as Court proceedings, then the sky is the limit on costs to challenge a Will and even the winner can end up heavily out of pocket. The executor acting will only find out that there is a challenge to the Will once the probate application goes to the Registry, so it may be better to apply for it, and then advise the executor so that there can be discussions and perhaps explanations or negotiations.
A probate caveat is a document that is sent to the Probate Registry to prevent the proposed executors or administrators of a deceased person’s estate from getting permission to administer the estate assets. Clearly, there must be sound reasons for submitting such an objection.
When are caveats used?
Some examples of when a caveat may be useful:
- To create a “breathing space” to enable the caveator to find out if there are sound reasons to object to an application for Probate.
- The executor refuses to disclose a copy of the Will.
- The executor appears to be dealing with the assets in an inappropriate way – for example, selling a property well below market price, or misappropriating assets, or taking unreasonable “out of pocket” expenses..
- Or to bring concerns about the estate to the attention of the Registrar.
- Perhaps if there is a suggestion that the Will is not really the LAST Will.
- Or that the person was not “of sound mind” when making the Will.
- You can challenge a Will if you might have the right to benefit under the Family & Dependants Act 1975 – basically, that you were entitled and or habitually received financial support from the deceased which is not reasonably reflected in the Will (or Intestacy if there is no valid Will.)
- A very common issue is that the testator was unduly influenced by one of the beneficiaries – not always easy to prove.
- Or the Will was not correctly signed and witnessed.
- The Will been altered in some way or is not genuine.
- There is a dispute as to whether a genuine Last Will exists or whether the estate needs to be dealt with under the Rules of Intestacy. It is not uncommon for people to throw away a Will they don’t like if they think they may do better under the Rules of Intestacy, one of the reasons we recommend the Peace of Mind Service.
- Maybe the person trying to apply for the grant of Probate is not actually entitled to do so.
- Or there’s a disagreement between people all of whom are entitled to apply for the grant of Probate.
- Perhaps there is real concern that the person applying for the grant of Probate is not trustworthy.
Who Can Challenge a Will/ issue a Caveat?
Anyone can challenge a Will, but you had better have a good reason for doing so, or the other sides’ application for you to pay the extra costs of defending against your challenge is likely to be granted. Most usually, it is disappointed family members, people who have been promised something they have not received (often promissory estoppel is quoted), or people who were financially dependent on the person who died. Another issue is that the executors are trying to take control of something which did not belong to the deceased.
Is a caveat appropriate?
If you simply need to know if and when the grant of Probate has been issued, or need a copy, then what you need is a “standing search” which will provide you with a copy of the Probate documents when they have been issued.
How to create a caveat?
You may do this yourself, or we can pass you on to a professional to at least see if you have a case, and perhaps assist in preparing a response to the WARNING the other side will send to tell you to put your case or go away and let the probate proceed. You get less than two weeks to respond, so you should prepare your facts the minute the Caveat is posted off.
If you are doing it yourself, you can write to the Probate Registry with the information needed, and the fee (at July 2021) of £3. Bear in mind that a caveat only lasts 6 months and if you forget to renew it, probate may be granted unchallenged, and then things potentially start to get really expensive if you wish to continue to challenge the grant.
What is a caveat? How to stop a probate application.
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