A caveat is a notice to request someone to suspend a specific action. In estate administration, it is used to prevent a grant of representation (grant of probate or a grant of letters of administration - depending on whether there or not there is a will) being obtained in a deceased person’s estate.
It is a notice to the probate registry to suspend the issue of a grant. A grant of representation is the legal authority for a person to administer the estate.
A caveat is most commonly used where there is concern about the validity of the deceased person’s will in order to stop steps being able to be taken to administer the estate, while those concerns are being investigated.
This will then allow the disappointed beneficiaries time to take time to digest what has happened, to receive and and consider legal advice, to make investigations and if appropriate, contest the will (to include obtaining information from the solicitors who prepared the will regarding the circumstances of its preparation and execution (if applicable) and obtain medical records or evidence from witnesses).
A caveat is also used to prevent a grant of representation being obtained where there is a dispute as to who should apply for the grant or there are concerns that the executor named in the will is not suitable and their removal is being considered.
The procedure involves a straightforward application to any Probate Registry (which can be done online and without the assistance of a solicitor) and a small fee is payable of £3. You will need to know the full name, date of death and last known address of the person who has died. You will also need to have a correspondence address in England or Wales.
Once entered, the caveat will remain in place for 6 months; but it can be renewed thereafter (at 6 monthly intervals). The caveator (the person who has entered the caveat) should contact the Probate Registry in the month before it is due to expire to arrange for its renewal. A further fee will be payable. If not renewed, it will automatically cease and any pending application for a grant (or application made thereafter) will be processed.
If after conclusion of enquiries the caveator is content for it to be removed, a simple letter to the Probate Registry requesting its withdrawal will suffice. It should be removed at this stage to allow the estate to be administered. It is an abuse of process to enter or leave in place a caveat without legitimate reason. If however there remains cause for concern then steps should be taken to pursue a contentious probate claim.
A caveat is not appropriate if a person wishes to bring a claim for reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. Such a claim must be brought within 6 months of the grant being issued (and in certain circumstances applications can be made out of time) and instead an application for a standing search can be made by the potential claimant in order to be notified of the issue of a grant to ensure this timeframe is not missed. The entry of a caveat to ‘buy more time’ is a misuse of the process.
Nobody is automatically notified of the entry of a caveat but the person seeking to apply for probate will be informed of it when they make their application. In that situation they should then allow reasonable time for the caveator to make their enquiries. If there is a reason why a grant is needed urgently in order to protect or preserve assets (for example to allow a property sale to take place or to stop high interest accruing on an equity release scheme) then a limited grant can be obtained to allow the executors to collect in assets, pay liabilities etc. but not to distribute the estate (and potentially dissipate assets).
Once a reasonable time period has expired or it appears that the caveat should no longer reasonably be in place then a formal document known as a “warning” can be issued to the caveator to “warn off” the caveat in order to seek its removal. There is no fee payable to do this. Once served with the warning the caveator has 14 days to ensure it remains in place by entering an appearance (which again is a formal document rather than requiring a physical attendance anywhere as the name of it would imply). Again, no fee is payable to enter an appearance. If an appearance is entered, then the caveat will be permanent and it can only be removed with the consent of the parties or by the court. If no appearance is entered, then the person who issued the warning will need to prepare an affidavit of service of the warning to arrange for it to be removed by the Probate Registry to allow the grant application to proceed.
Once a warning is issued and an appearance has been entered, there are costs consequences for both parties if the court considers the caveator or the person warning has acted unreasonably. Courts will not tolerate caveats being entered or being left in place on purely objective or spurious grounds; likewise, they will penalise premature warnings. In Elliott v Simmonds [2016] EWHC 732 (Ch) the caveator faced a costs liability of in excess of £100,000 after allowing her caveat to remain in place notwithstanding having disclosure of all the documents pertinent to her will validity claim which demonstrated her claim had no merit.
