What is a caveat and why might one need to be entered?

A caveat is a notice in writing, lodged in the Principal Registry of the Family Division, a district probate registry or probate sub-registry, to show cause against the issue of a grant of probate to anyone other than the person entering the caveat (the caveator). It is therefore possible to prevent a grant of representation issuing to another person by entering a caveat.

The entering of a caveat is a step that could result in Court proceedings and legal costs being incurred and whether a caveat is appropriate will depend upon the circumstances. It is therefore sensible to seek legal advice before entering one.

Typical reasons for wanting to oppose the issue of a grant are:

• Because the caveator has doubts that the grantee will properly administer the estate.
• To allow the caveator to make further enquiries and obtain further evidence:

– to oppose the proof of a Will or

– to satisfy himself that he or the person applying for the grant is the nearest next of kin on an intestacy.

There are other reasons why a caveat may be entered and provided the reason for entering a caveat can be justified, a caveat should be entered.

How is a caveat entered?

A caveat is entered by lodging the caveat, in the prescribed form, personally or by post, in any registry or sub-registry and paying the prescribed fee (currently £20). The caveat will not be entered until the correct fee is paid and the registry will acknowledge the entry of the caveat by giving notice to the caveator.

How long does a caveat remain in place?

Once entered, a caveat remains in force for six months from the date of entry. It may be renewed by sending a letter to the relevant registry within the last month of the period of six months from entry. A caveat may then be extended for further periods of six months on the same basis until it is ultimately removed. The fee for extending a caveat is currently £20.

What happens with probate once a caveat has been entered?

Most types of grant of representation cannot issue whilst a caveat is in place. Any interested person may therefore issue a “warning” to the caveator. A warning is a notice to the caveator and must be in the prescribed form. A warning can only be entered at the Leeds District Probate Registry. There is no fee for issuing a warning to a caveat.

The person issuing the warning must state the nature of his interest and the date of the Will (if any) in the warning and it must be served on the caveator in accordance with specific rules as to service. The warning must also require the caveator to state the nature of his interest.

Once the warning has been served on the caveator, one of the four things will happen depending on what right the caveator is alleging and what steps he chooses to take:

1. The caveator may withdraw his caveat – this can be done at anytime before he enters an appearance to the warning. When a warning has been issued, then the caveator must give notice of his withdrawal to the person issuing the warning. The caveat must be withdrawn at the registry in which it was entered. No fee is payable upon the withdrawal of the caveat.

2. The caveator may enter an “appearance” – an appearance should be entered in the prescribed form at the Leeds District Probate Registry within eight days of service of the warning on the caveator. If the caveator does not enter an appearance, then the person issuing the warning may take steps to “warn off” the caveator. Once an appearance has been entered, the caveat remains in force until a District Judge (or, when the parties consent to the discontinuance of the caveat, a registrar) otherwise directs. There is no fee for entering an appearance.

3. The caveator may issue and serve a summons for directions – this must be done within eight days of service of the warning, otherwise the caveator risks being warned off. Please note that a summons for directions may only be issued by a caveator who has no interest contrary to that of the person issuing the warning. After a summons for directions has been issued there will be a hearing before a District Judge at which he will decide to whom a grant should be made.

4. A caveator may do nothing – in this case the person issuing the warning may file an affidavit in the Leeds District Probate registry after the eight-day time-limit for entering an appearance has expired. The affidavit must show that the warning was served on the caveator. The caveat is then said to be “warned off” and is no longer effective so that the person issuing the warning is then free to proceed with his application.

Summary

A caveat should only be entered by a person having an interest in the estate and who wishes to oppose the issue of a grant to another person.

If the purpose is to ascertain when a grant issues, to register a client’s interest as a creditor of the estate, to launch proceedings against the estate, or to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975, a standing search should be applied for.

If you are thinking of entering a caveat, we can help. Additionally, if a caveat has been entered and you need advice on what to do, we also have considerable expertise and experience to assist you.

Contact our wills, trusts and probate experts today

If you still haven’t finalised your last wishes or would like to write a new will, want to leave money in trust for a young relative, or are struggling with probate issues, call us on 03456 381381. Alternatively, email us at estatemanagement@ibblaw.co.uk.