With the Ministry of Justice reporting that the number of Caveat applications made in England and Wales passed the 10,000 mark in 2023, it is clear that contentious probate matters are on the rise. This article therefore addresses some of the key points relating to Caveats.
Anyone can make an Application to the Probate Registry to lodge a Caveat against a Deceased person’s Estate. If a Caveat is lodged against an Estate, it prevents a Grant of Probate (where there is a Will) or a Grant of Letters of Administration (where the Rules of Intestacy apply) (together known as “Grants of Representation”) from being obtained in relation to the Estate in question.
Consequently, this prevents the Executors or Administrators from administering the Estate or distributing the Estate whilst the Caveat remains in place.
There are many reasons why a Deceased person’s Estate may be the subject of a dispute. Primarily, though, there are two (2) reasons for a Caveat being lodged.
First, a Caveat can be used where an individual wishes to challenge the Validity of a Will, and so doesn’t want to see the Estate administered and distributed in accordance with a Will which they do not consider to be legally valid.
Second, a Caveat can be used where a dispute arises about who should apply for a Grant of Representation, or who should administer the Estate. Therefore, the person who lodges it wants to ensure that another person isn’t able to obtain a Grant of Representation and begin the administration of the Estate.
If there is no Caveat lodged against an Estate, then upon either the Executors or Administrators applying, the Probate Registry will issue a Grant of Representation to them. Once this is granted, it provides them with the power and authority to administer and distribute the Estate in accordance with the Will or the Rules of Intestacy. This may include making payments to Beneficiaries or transferring property / assets into Beneficiaries’ names.
As an example, a Property which is owned in the Deceased person’s sole name, can’t be sold until a Grant of Representation has been issued.
In order to apply for a Caveat, you must be eighteen (18) or over and live in England or Wales.
There are two (2) ways in which you can apply for a Caveat. This includes:
There is a charge of £3.00 which you pay when you submit the online application or via cheque if you send a PA8A.
A Caveat lasts for six (6) months, but may be renewed for a further six (6) months at a time. In order to renew the Caveat, you must apply in the last month before it expires, using Form PA8B.
If the Caveat has expired before an application to extend it is processed, an entirely new application for a fresh Caveat should be made.
However, there is of course the risk that a Grant of Representation is issued in the interim between the expiry of the old Caveat and the lodging of a new one.
Once a Grant has been issued, there is no way to retrospectively lodge a Caveat and the Executors or Administrators are then free to administer and distribute the estate.
Ordinarily, as mentioned above, the Probate Registry will not issue a Grant of Representation if there is a Caveat lodged against the Estate in question.
However, there are limited circumstances where an interim Grant of Representation may be issued whilst a Caveat is in place.
This is called a Limited Grant.
As the name suggests, a Limited Grant gives the Executors or Administrators limited powers to deal with the certain aspects or assets of the Estate, where there is a risk of loss to the Estate.
For example, if the Estate includes a Property which is declining in value, physically deteriorating, or which is incurring significant maintenance costs whilst unsold, then in order to preserve the Estate, it is necessary for the Executors or Administrators to be able to sell the same, to avoid the Estate losing money.
In those circumstances, it may be possible to obtain a Limited Grant which will allow the Executors or Administrators to sell the Property. However, once they have done so, they must then hold the funds and are not able to proceed with the rest of the administration of the Estate or to distribute the Estate, until the Caveat has been removed and a Full Grant of Representation has been issued.
Once an Application for a Grant is submitted to the Probate Registry and is stopped by a Caveat, the Probate Registry will (i) notify the Executors or Administrators and provide them with the details of the party who lodged the Caveat, and (ii) notify the party who lodged the Caveat and provide them with the details of those who had applied for the Grant.
Thereafter, commonly, the parties will then enter into correspondence to discuss the reason for the lodging of a Caveat and to try to resolve any disputes.
If a resolution cannot be reached, it is possible for an interested party to use the “Warning Off” Procedure to attempt to remove a Caveat. Interested parties include the Personal Representatives (i.e. the Executors or Administrators) and Beneficiaries.
The Procedure involves the a document known as a “Warning” being drafted by the interested party and sent to the Probate Registry for them to seal (i.e. record and stamp) it, before it is then returned to them.
The interested party then serves the “Warning” upon the party who lodged the Caveat (known as “the Caveator”), who will then have a period of fourteen (14) days to respond.
To respond, the Caveator will either:
(i) file a document called an “Appearance”, setting out the grounds for having the Caveat in place (i.e. on what basis they are disputing the Validity of the Will), although they do not need to produce any evidence in support of the same; or
(ii) issue a Summons Application, asking the Probate Registry to decide whether a Grant of Representation should be issued and to whom, when their objection relates to who administers the Estate.
If the Caveator does either of those two (2) things, then the Caveat becomes fixed and permanent, and is then only removable either by a Court Order or by the consent of the Caveator.
Should the Caveator not respond to the “Warning” within the fourteen (14) day period, the Probate Registry can be asked to, and should, unilaterally remove the Caveat. Once a Caveat has been removed, any pending Applications for a Grant of Representation can then proceed.
If you are considering lodging a Caveat against an Estate or would like some advice regarding disputing a Will or an Estate dispute, please do not hesitate to contact our Contentious Trusts & Probate Team.
Whilst the process of lodging a Caveat may be fairly quick, the underlying legal disputes are often complex, time-consuming and difficult, and this is something our expert advisors can assist with.