The reasons why a Caveat might be lodged and the impact of doing so by estate administration expert Robert Cartmell.
I, Robert Cartmell, having worked in estate administration work for over 25 years and during this time there can be occasions where a person has need to lodge a ‘Caveat’ against a Will being processed for Probate.
What is a Caveat?
A Caveat is a formal legal ‘warning’ that is lodged or served at the Probate Registry and which prevents a Grant of Probate (where there is a Will) or Grant of Letters of Administration (for other cases) being issued by the Probate Registry.
Why is a Caveat lodged?
If someone has grounds for potentially ‘contesting’ a Will, the Caveat affords them further time to allow further enquiries to be made and information gathered.
What are the reasons for contesting a Will?
- A person holding the Will (which is likely to be the Executor) has refused to disclose the details of the Will or provide a copy.
- The prospect of assets being disposed of (using the Grant) which were not in accordance with the intentions of the Deceased.
- Concern as to the validity of the Will due to concerns as to undue influence on the person who made the Will (Testator).
- Concern that a Will has been undertaken when the Testator lacked sufficient mental capacity.
- That the Executor or person likely to apply for a Grant might not be entitled to do so.
In such cases, lodging a Caveat by the interested/affected party will allow time for the matter to be investigated and the estate assets better protected.
How is the Caveat lodged?
The Caveat is a process usually undertaken online. The process does not require much if any supporting documentation. There is a fee that is payable. The lodging of a Caveat does not require specific notice to be served on other parties. The Caveat stays on the Probate Registry’s file (or remains in force) for a period of 6 months from the date when it was entered. Before it is due to expire, a request can be made to extend the period of the Caveat for a further six month period.
The scope of the Caveat
When someone (for example, the proposed Executor of the Will to be potentially challenged) applies for a Grant, if there is a Caveat lodged, the proposed Executor will be informed of the fact that the Caveat has been lodged. This will then start a process where the matter can be explored by the ‘competing’ parties. A dialogue can follow which can lead to the issue being resolved by the Caveator (person lodging the Caveat) removing the Caveat and allowing the application to proceed. Alternatively, the Caveat will lead to an investigation of the circumstances surrounding its lodgement and can lead to the application for a Grant not proceeding.
Removing a Caveat
In the absence of successful dialogue and resolution, the proposed Executor can serve a ‘Warning’ on the Caveator. This is submitted to the Probate Registry and it is then served on the Caveator.
Once a ‘Warning’ is served, the Caveator has 14 days to serve an ‘Appearance’ which is a statement served to the Registry of the grounds on which the Caveat was lodged.
Once an ‘Appearance’ has been lodged, the Caveat will remain in force until the issue is resolved. If an agreement cannot be reached, one of the parties will usually lodge an application to the Probate Registry for a hearing to project manage the matter to a hearing or decision on the matter. That would then lead to a formal (contested) Probate action.
Hopefully, the process will lead to an agreement without a formal hearing and once an agreement is reached, the parties together submitted an agreement to formally remove the Caveat, allowing a suitable application for Probate/Grant to be made.
Advice
If you a proposed Executor who has received notice of a Caveat or someone who is looking at challenging the validity of a Will, please seek our advice to ensure that you understand all of the options available to you and can take a considered, informed approach to the matter.