Posted: Friday, 4 January 2019 @ 13:43
In this era of DIY litigants trying to save on those slightly high legal fees, I thought it would be useful to cover a topic relevant on probate.
My intelligence from other lawyers is telling me that the probate system is increasingly seeing a spate of caveats being issued. I am hearing of people who think they can change the history of the family and settle all arguments simply by lodging a caveat (without any evidence of anything) and then doing nothing---causing delay and expense to everyone concerned.
That is not very good,is it?
Hmmm, let us see what the current law of caveats is... . What are caveats?
Caveats are a system of preventing common form grants. They are important where there are genuine concerns about the validity of a Will or the suitability of a particular person acting as executor or administrator. The caveat procedure is used to prevent a Grant of Probate or Letters of Administration being taken out in respect of a deceased's estate. The person who puts the caveat in place is called the caveator.
Why would you want to lodge a caveat?
The reasons include:
• Where the caveator wants to prevent the Grant of Probate being taken out as they believe the Will of the deceased is invalid for some reason, such as the person who made the Will did not have the mental capacity to do so, or the Will was not properly witnessed;
• Where the caveator wants to prevent a Grant of Letters of Administration being taken out on the basis that the deceased died intestate, when they believe there was a validly-executed Will in existence; or
• Where the caveator is aware of or involved in a dispute about who is entitled, or is the appropriate party, to take out the Grant of Letters of Administration.
When is it not appropriate to issue a caveat?
It is not a good idea to lodge a caveat where the caveator wishes to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is because a claim under this Act can only be brought once the grant of representation has been taken out. This is a common error made.
.What is the procedure for issuing a caveat?
A caveat can be lodged at any Probate Registry; this does not need to be at the probate
registry local to the deceased. The Probate Registry will need:
• The deceased's name, date of death and address;
• The name and address of the caveator;
• The request for the caveat to be signed by the caveator or their solicitor;
• A fee of £20
The caveat is then valid for six months. It can be renewed at the end of this period on
payment of a further fee.How can the caveat be removed?
The caveator can remove the caveat at any time by writing to the Probate Registry. Given this a legal letter may be a good idea informing the individual that it is an abuse of proceedings to issue a Caveat inappropriately (see Parnall v Hurst  WTLR 997.) Are the rules on caveats being changed?
Yes, there are new proposed rules that the applicant must cite the reason why he/she is objecting to the issue of the grant from a set list which mirrors the accepted defences to a probate action. Under the Draft Rules an objection will remain in place for 12 months compared to six. I believe that the new rules will result in more protracted pre-litigation skirmishes and increased costs, but we will see.