Posted: Tuesday, 15 November 2022 @ 09:45
Once a caveat has been placed, what are the steps required to overcome this?
Issuing a Warning - To issue the caveator
with a warning, the warning request is sent to Leeds District Probate Registry to be sealed (blank warnings and a precedent can be sent to
you.
You can
only issue a warning if you have what is called “an interest” in the estate,
this means you have either applied already for a grant, you intend to do so or
you have potential entitlement to do so.
This interest has to be stated on the warning form.
Leeds Registry
will check the warning against the caveat and then date and seal the warning
and return it to you.
It is your responsibility to serve the warning on the Caveator
to the address in the caveat. Leeds do not
contact the caveator.
Service can be
by post or in person but not by email.
A copy of the
sealed warning should be kept and a note of how it was served.
Once the sealed
warning has been served on the Caveator, the Caveator has 14 days to respond (including
weekends and bank holidays)
The response
can be by way of entering an appearance or a summons for directions which are
described in brief below.
After you have done your Warning and the other side may serve an Appearance and the impact of service of an Appearance to a Warning is that no grant can be issued without an
order of the Court.
In addition, the Caveat remains in force until proceedings are commenced by
probate claim or otherwise directed by order made on summons by a district judge of the Principal
Registry or by a Registrar of a District Probate Registry.
Thus the Appearance effectively permanently blocks the prospect of probate.
There are therefore two potential ways forward to overcome the caveat and it requires Court action: -
Option 1 : An application by Summons to a District Judge of the Principal Registry (or Registrar of a
District Probate Registry) to strike out the Appearance and discontinue the Caveat on grounds
that caveator has no interest contrary to that of the person warning the Caveat or because
his claim is wholly without substance. or
Option 2 : A probate claim in the Chancery Division of the High Court asking the Court to pronounce for Deceased's last will in solemn form.
Turning to these options in detail:
OPTION 1 - APPLICATION BY SUMMONS - In rare cases where a caveator enters an Appearance to Warning that does not demonstrate that
the caveator has an interest contrary to that of the person warning the Caveat, or because his/her claim is wholly without substance, it is possible to apply to a District Judge of the Principal Registry
(or Registrar of a District Probate Registry) for an order striking out the Appearance and
discontinuing the Caveat.
The application is made by Summons supported by a witness statement.
The requirement that a caveator should have an interest in the estate is a procedural matter and
cases tend to be determined on a pragmatic case-to-case basis. The meaning of “interest” is given
a broad construction consistent with the approach taken by the court when deciding whether a
person has a sufficient interest in an estate to bring or defend a Probate Claim. For example, a creditor of an estate does not usually have sufficient interest to challenge the
validity of a will because the creditor of an estate is not interested in which beneficiary receives
what.
The interest of a creditor of an estate is simply to ensure that there is due administration of
the estate. By contrast, it is possible for a creditor of a beneficiary to have sufficient interest to challenge the
validity of a will.
OPTION 2 : A PROBATE CLAIM IN THE CHANCERY DIVISION OF THE HIGH COURT
The more usual course of action for an executor after an Appearance has been entered is to bring
a probate claim asking the Court to pronounce for the will in solemn form. This is done by issuing
a Part 7 claim form in the Chancery Division (or out of one of the Chancery district registries). If
the will propounded by the executor is found to be valid, the court pronounces for its validity and
the executor entitled may apply in the usual way for a grant of probate in a probate registry.
The procedure for probate claims is laid down mainly by CPR Part 57, the associated Practice
Direction PD 57 and the Chancery Guide.
With respect to Pre-action Protocol:There is no approved pre-action protocol for probate claims and the CPR
Practice Direction – Pre-Action Conduct and Protocols therefore applies.
Paragraph 6 of the
Practice Direction explain the steps that must be taken before issuing a claim. The steps will
usually include:
(a) The Claimant writing to the Defendant with concise details of the claim. The letter should
include the basis on which the claim is made, a summary of the facts, and a request for the
caveator to discontinue the caveat thereby avoiding the need for proceedings;
(b) The Defendant responding within a reasonable time – usually 14 days. The reply should include
confirmation as to whether the claim is accepted and, if not, the reasons why along with an
explanation as to which facts and parts of the claim are disputed and whether the defendant
is making a counterclaim as well as providing details of any counterclaim, and
(c) The parties disclosing key documents relevant to the issues in dispute.
Paragraph 8 requires the parties to consider whether negotiations or some other form of ADR
might enable them to settle their dispute. If proceedings are issued, the parties may be required
to provide evidence that ADR has been considered.
Non-compliance with the Practice Direction can result in the proceedings being stayed until the
relevant steps have been taken, and costs and interest penalties. In addition, the Association of Trusts and Probate Specialists (ACTAPS) offers a suggested protocol
document that can be used for probate claims known as the ACTAPS Code which includes other
resources and templates such as a draft letter to deceased’s GP requesting report as to mental
capacity.