caveat probate

Should I enter in a caveat probate?

Whether or not to enter in a caveat to prevent a grant of probate from being issued is a major decision. It is often the first step taken in the process of contesting a will.
 
It is described by HM Courts & Tribunals service as used to create ‘breathing space.’ It allows someone the chance to seek legal advice and decide their next course of action. This could be to:
  • Find out whether there are grounds to dispute the validity of a will
  • Investigate concerns that undue influence or fraud may have occurred
  • Resolve disputes between executors or beneficiaries
How it works?
A caveat is a legal document, lodged at the probate registry that prevents probate being granted. Anyone can enter in a caveat; all you need is the full name and last permanent address of the deceased and the date of death. You do not need a death certificate and do not need to be an executor or beneficiary.
 
When someone tries to apply to probate, they will be informed of the situation, given your details and urged to reach an agreement if possible.  The person applying for probate will have the opportunity to issue a ‘Warning’ to the caveator who will then have 8 days to respond. The response is known as an ‘Appearance’ and details the grounds as to why the Caveat has been issued. Failure to issue an appearance means the personal representative can apply to have the caveat removed.
 
Once in force, it is valid for 6 months and can be removed if parties reach an agreement but only if no ’Appearance’ has been entered in. In this case, the caveat may only be withdrawn by order of a Registrar. If no agreement is reached in the 6 months, it can be renewed. 

When it is appropriate?
Wherever necessary, it is always best to try to resolve minor disputes before entering in a caveat. If your concerns are of a serious nature, for example you have reason to believe the executor is not going to distribute the estate in accordance with the will; a caveat is your only course of action. It should be done immediately before the probate application has been submitted.
 

What is an interim grant?

An interim grant is usually approved by the Court if there is some sort of contention during the probate process, allowing an independent third party to continue working on the administration until the problem reaches a conclusion.
 
The interim grant is only permitted to be in force during the period of the Court case and tends to be given to an accountant or solicitor. During this time, the individual administering the Estate cannot begin to distribute any assets. Their job is solely to protect the assets contained within the Estate.
 
So, regardless of whether or not a Caveat has been registered with the Probate Registry in an attempt to halt the process, the deceased’s Estate will continue to be administered with outstanding bills being paid and daily tasks being carried out as normal, until the probate dispute has been resolved.

What is a caveat probate?

When a person dies, it is the duty of the executor to apply to the Probate Registry for a grant of representation, so that the probate process can begin.
 
If someone would like to contest the Will however – if perhaps they feel they should have been left something but weren’t or they suspect that the testator was perhaps coerced into writing specific content within their Will; it is in their best interests to halt the progress of probate.
 
A caveat probate will therefore prevent the Registry from issuing the grant of representation.
 
To present a caveat probate, the specific form must be given to the Probate Registry by the person wishing to contest the Will. This gives them time to discuss the matter with the executor or take relevant legal advice. Should the executor object to the caveat probate, then the person contesting the document will receive a warning from the Registry and must complete and present another form within 8 days. If nothing is received in this time, the caveat probate is removed.
 
The caveat probate is valid for a period of 6 months, although an extension of another 6 months can be requested towards the end of this initial period. If no agreement can be reached, both parties will likely be forced to enter into court proceedings.

Probate Dispute Over Inheritance

Another sad probate dispute was reported in the press recently.
 
This one focused on the deceased owner of Corby Castle, Sir John Howard-Lawson and his businessman son.
 
The castle was sold in 1990, but the surviving son, Mr Howard, claimed that his father was not legal owner of the castle at that time and so he felt that he should be entitled to receive £1.5 million from the proceeds of the sale.
 
It appears that Sir Howard-Lawson’s own great grandfather had inserted a “name and arms” clause into his Will which stated that to inherit the castle, his descendants should adopt the Howard surname and coat of arms. 
 
The son felt that his father had not complied with these terms, but the case was rejected by the Court, who was satisfied that Sir Howard-Lawson had indeed complied with the terms before the sale had taken place.

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