Caveats What are they and when should they be used?

6th August 2019 Commercial Litigation

When someone dies leaving a will, their executor will usually have to apply for a Grant of Probate to their estate. This is a legal document which confirms that the executor has the authority to gather in the assets of the estate and administer the estate as per the directions contained in the will.

However, if someone wishes to contest the will, or they have concerns that the person intending to apply for a grant may not properly administer the estate, they can enter a caveat which prevents the Grant of Probate from being issued. Subject to its extension, the caveat will last for six months and costs £20.

This can be a useful way to provide more time to discuss any areas of contention regarding the will, or the executor’s conduct, without necessitating court proceedings.

However, the case of Elliott v Simmonds [2016] EWHC 732 (Ch) shows that caveats should not be used to cause delay where there are insufficient grounds to warrant this.

In this case, Ms Simmonds entered a caveat against the estate of her father, thereby preventing the Grant of Probate from being issued and the subsequent distribution of the estate. Ms Simmonds raised a passive defence, meaning that she did not raise a positive case as to why she disputed the validity of the will, but insisted on the will being proved by the executor and she asserted her right to cross-examine the witnesses who attested the will. The matter ultimately went to trial, where Ms Simmonds lost and was ordered to pay costs in excess of £100,000.

In reaching this judgment, the Judge stated that Ms Simmonds had acted unreasonably in opposing the will after she had received all relevant documents relating to the matter, together with a statement from the solicitor who took instructions for the will as to the circumstances of its execution, which demonstrated that her claim had little merit. It was therefore ordered that Ms Simmonds be ordered to pay costs from the date on which she obtained sufficient information to determine whether there were reasonable grounds for her to oppose the will.

Therefore, this case shows that an element of caution should be exercised when entering a caveat where there may be no reasonable grounds to contest a will. A caveat should not be used simply to frustrate the administration of an estate and create expense for all parties where the caveator (the person entering the caveat) can show no justification for doing so. It is clear that if a caveat is used in this way, there could be severe costs consequences for the caveator if the matter went to court.

To conclude, if there are concerns over the validity of the will or the individual who is applying for the Grant of Probate, it is important to enter a caveat as soon as possible. Whilst an estate can still be contested after a Grant of Probate has been obtained once the executor has the Grant of Probate they could distribute the assets of the estate to the beneficiaries of that will or even make distributions not in line with the terms of the will, which may create problems for a caveator in attempting to recover those distributions if the will was later found to be invalid or if the executor was found to have acted inappropriately in administering the estate.

However, it is equally important that where it becomes evident that there are no reasonable grounds for opposing the will following disclosure of any documents by the executor that steps be taken to agree to the removal of the caveat, either by expiration or consent, to avoid the need for the executor to apply to court to prove the validity of the will, as this could result in severe financial consequences for the caveator.

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Marc Yaffe is a Head of Business Development located in Manchesterin our Management BoardSports Law departments

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