Posted: Tuesday, 21 February 2017 @ 09:38
If a person with an interest in the deceased's estate wishes to block a grant of probate or letters of administration being obtained, one can issue a caveat and you pay the nominal sum of £20 to stop probate for six months which is renewable.
Broadly there are three circumstances in which a caveat can be lodged:
1 If you have doubt about the validity of the will or other testamentary document e.g the will was not validly executed or the will person making the will did not have full mental capacity.
2 Doubt as to who should be the executor or personal representative of the estate -This can apply if you are concerned that the executor is too ill or is a criminal.
3 Where a citation needs to be taken out - If you need to issue a citation to require a person to accept or refuse a grant, to take a grant you must issue a caveat beforehand.
Where caveats are often used and (ostensibly) incorrectly is one when someone is making a claim under the 1975 Inheritance Act.
If you issue a caveat solely on the basis of making an inheritance claim you run the risk of the caveat being struck out and facing a costs order such as what happened in a case of McBroom (1992).
An inheritance claim historically could be made only once a grant of representation was issued(if a caveat was not in place this was not possible) though this has been amended by the IPTA 2014.
However despite this legal misuse of caveats, I can advise someone to issue a caveat even if you are focused solely on an inheritance claim and you run the risk of a costs order (should a warning be issued to the caveator) as the blocking of the estate is a good negotiation tool.
It forces the other side to do work though if they do take you on you have to be very careful.
More significantly, if you do not issue a caveat and probate is granted then the executor may spend all the money.
What is the point in being right legally if there is no money in the estate?