How to Respond to a Caveat

When someone passes away, their estate - which includes their property, money, and possessions - needs to be managed and distributed to the appropriate beneficiaries. This process, known as probate, often requires the person responsible for administering the estate (commonly referred to as the executor or administrator) to obtain a grant of probate or a grant of representation. These legal documents give the executor the authority to deal with the deceased's estate, ensuring it is administered properly.

However, disputes can arise during the probate process, particularly if someone questions the validity of the will, the deceased's wishes, or the legal right of a particular person to administer the estate. In such cases, a caveat may be lodged with the probate registry to temporarily prevent the grant of probate from being issued. A caveat is often used in inheritance disputes or when someone believes the deceased’s estate is not being handled correctly.

While a caveat can serve a legitimate purpose in protecting the interests of concerned parties, it can also cause significant delays if misused or left unresolved. If you are involved in such a situation - whether you wish to challenge a caveat or respond to a challenge - it is important to understand the process and take action promptly.

In this blog post, we explain the role of caveats, how to respond to challenges, and the legal steps involved in having a caveat removed. Acting quickly and obtaining specialist legal advice can help ensure the estate is administered smoothly and any disputes are resolved efficiently.

What Is a Caveat?

A caveat is a legal tool that prevents the probate registry from issuing a grant of probate or grant of representation in respect of a deceased person's estate. Lodged by someone who wishes to dispute the administration of the estate, a caveat effectively places a "freeze" on the process until the underlying issues are resolved, and no applications for probate on the estate can be granted during that time. The caveat lasts for an initial six months, and can be extended for another six months if necessary.

The person who lodges the caveat, known as the caveator, must have an interest in the estate, such as being a potential beneficiary or someone who wishes to challenge the validity of the will. Common reasons for entering a caveat include:

• Disputes over the validity of a will: For example, concerns about whether the will was properly executed, forged, or prepared under undue influence.
• Lack of testamentary capacity: If there is evidence that the deceased lacked the mental capacity to make or amend their will.
• Intestacy concerns: In cases where no valid will exists, disputes may arise over who is entitled to administer the estate under the intestacy rules.
• Fraud or misconduct: Where there are suspicions of fraudulent activity or concerns that the estate is not being handled appropriately by the person applying for probate.

The consequences of lodging a caveat can be significant. A caveat prevents the estate from being administered, which can delay inheritance distribution and lead to court proceedings if the dispute escalates. If you believe a caveat has been lodged in error or without sufficient legal grounds, you may need to take action to have it removed.

How to Respond to a Challenge Against Your Probate Application

If someone has lodged a caveat that is preventing you from obtaining a grant of probate or representation, and you wish to challenge it, you will need to take steps to remove the caveat. Conversely, if you are the caveator and the person seeking the grant has issued a challenge to your caveat, it is important to understand your legal position and act quickly to protect your interests.

When a caveat is challenged, the person seeking to remove it issues a formal legal document known as a warning. This written notice is sent to the caveator, and it requires them to justify the reasons for lodging the caveat. The warning must specify the grounds on which the person issuing the warning is disputing the caveat.

Once the warning has been served, the caveator (the person who lodged the caveat) has 14 days (including weekends and bank holidays) to respond. How they choose to proceed will determine the next steps in the process. The caveator has two main options:

1. Enter an appearance to defend the caveat: If the caveator believes they have a contrary interest - for example, they argue the will is invalid or believe they are entitled under an earlier or later will - they can enter an 'appearance'. This is a formal response to the warning, submitted to the probate registry, which sets out their legal interest in the estate and the reasons for maintaining the caveat.
2. Issue a summons for directions: If the caveator does not claim a contrary interest but, for example, believes they are equally entitled to apply for probate or feels that you are not a suitable executor, they may issue a 'summons for directions'. A summons asks the probate registry to intervene and decide who is entitled to administer the estate.

If the caveator fails to respond to the warning within the 14-day deadline, the caveat will automatically lapse, and the probate application can continue. However, if they respond by entering an appearance or issuing a summons, further steps will need to be taken to resolve the dispute, potentially through court proceedings or by mutual agreement between the parties.

If you are the caveator and have received a warning, or if you are the person issuing the warning, obtaining specialist legal advice at this stage can be invaluable. A legal professional can assess your situation, prepare the necessary documents, and advise on the best course of action to resolve the dispute as efficiently as possible.

What Is the Process of Issuing a Warning?

If you need to challenge a caveat, you must issue a warning to serve as formal notice informing the caveator (the person who entered the caveat) that their caveat is being challenged and requires them to respond. Issuing a warning is essential for removing a caveat and ensuring the probate process can proceed.

Here are the steps to give a warning:

• Request the warning form: You must request a warning form from the Leeds District Probate Registry. This is the probate registry responsible for processing warnings related to caveats.
• Complete the warning form: On the form, you must state your reasons for being entitled to apply for probate or representation. This is referred to as stating your “interest” in the estate. Your interest could be as the named executor in the will, or as someone who has legal authority to administer the deceased person’s estate under intestacy rules.
• Send the completed form to the Leeds District Probate Registry: Once you have filled in the warning form, send it back to the Leeds District Probate Registry. The probate registry will:
• Record, date, and stamp the warning with the court’s official stamp.
• Return the stamped warning form to you.
• At this stage, it is important to ensure all the information is accurate and properly completed. Errors in the form could lead to unnecessary delays.
• Make a copy of the warning: Before sending the warning to the caveator, make a copy of the stamped warning form for your own records. Keeping accurate records of the process is essential, especially if the matter escalates.
• Serve the warning on the caveator: You must serve the warning on the person who lodged the caveat. This can be done either by hand or by post, but email is not an acceptable method of service. Ensure you keep a record of how and when the warning was delivered.

Issuing a warning can be a complex process, and even minor mistakes can delay progress. To ensure everything is done correctly, consider seeking specialist legal advice to assist with this crucial stage.

What Happens Next?

Once you have issued a warning, the process moves forward depending on how the caveator responds. They have 14 days from the date they are served the warning to take action. The steps that follow will depend on their decision to either respond or take no action.

If the caveator does not respond

If the caveator does not respond within the 14-day timeframe, the caveat will automatically lapse, and the probate registry will lift the freeze on the probate application. This allows the process of obtaining the grant of probate or representation to resume, enabling the deceased’s estate to be administered.

If the caveator enters an appearance

If the caveator chooses to defend the caveat, they must enter an appearance with the probate registry within 14 days of receiving the warning. An Appearance is a formal document that sets out their contrary interest in the estate. For example, they may claim that:

• The will is invalid (eg due to lack of proper execution, forgery or undue influence)
• The deceased lacked testamentary capacity when making or amending their will
• Under intestacy rules, the person applying for probate is not entitled to administer the estate

If an appearance is entered and the Registrar agrees with the reasoning, the caveat remains in place permanently. At this stage, it can only be removed by order of a District Probate Registrar, High Court Judge or District Judge, and court proceedings may be needed to determine the validity of the caveator’s claim and decide who is entitled to administer the estate.

If the caveator issues a summons for directions

In some cases, the caveator may choose to issue a summons for directions instead of entering an appearance. A summons is used when the caveator does not have a contrary interest but still disputes the application for probate. For example, they may believe:

• They are equally entitled to apply for probate.
• The person warning (i.e., the person applying for probate) is unsuitable to act as executor.

When a summons is issued, the probate registrar will review the case and decide how to proceed. In some instances, the registrar may appoint an independent administrator to manage the deceased’s estate if the dispute between the parties cannot be resolved.

Resolution through agreement or court proceedings

If the caveator’s response leads to further dispute, the case may proceed to a hearing before a District Judge, High Court Judge or District Probate Registrar, depending on the complexity of the matter. The court will evaluate the evidence, such as witness statements and legal arguments from both parties, and issue a decision on:

• The validity of the caveat
• The entitlement of the person applying for probate or representation

Alternatively, the parties involved may reach an agreement outside of court, either through negotiation or with the assistance of legal professionals. This approach can save time and reduce legal costs.

If the caveat is eventually removed successfully, the probate application can proceed, and the estate will be administered in accordance with the deceased’s wishes or intestacy rules. If the caveator is found to have acted unreasonably, the court may order them to pay the legal costs incurred by the other party.

It is always advisable to obtain legal advice early in the process is essential to ensure all procedural requirements are met, and to increase your chances of a favourable outcome.

How to Remove a Caveat That Has Been Made Permanent

If a caveator has entered an appearance, it becomes permanent and can no longer be removed automatically. At this stage, resolving the matter requires further action, either by agreement between the parties or through court proceedings.

The most straightforward way to remove a permanent caveat is by agreement between the relevant parties. If both parties consent to removing the caveat, a summons must be prepared and filed with the court, along with a consent order signed by all parties, confirming their agreement to remove the caveat. Once the court approves the order, the caveat is lifted, allowing the probate application to proceed.

If the parties cannot agree to remove the caveat by consent, the next step is to issue a probate claim in court. A probate claim is a formal legal process that asks the court to decide whether the caveat should remain in place or be removed. There can be significant cost implications for the unsuccessful party in these instances, which is why mutual agreements are desirable wherever possible.