The use of Caveats is straightforward but often wrongly applied in practice. Until such time as the basis for lodging Caveats is changed, they are a quick and cost-effective means of preventing a Grant of Probate or Letters of Administration from being issued.
But beware of the trigger-happy use of a Caveat…the costs of getting them wrong can be high.
When should a Caveat be issued?
There is only one fundamental reason for lodging a Caveat – to prevent the issue of a Grant of Representation. Only someone with an interest in an Estate should lodge a Caveat.
A Caveat is a notice in writing, lodged at the Probate Registry, that prevents the issue of a Grant of Representation in an Estate. Entering a Caveat is a step that can result in the issue of Court proceedings and legal costs. It is not a step that should be taken lightly but it is an important tool if
- You have doubts about the validity of the Will
- You need to make further enquiries and obtain evidence/information
- You have concerns that the person who would take the Grant will not administer the Estate properly
- You need to be sure that the person who might apply for a Grant under an intestacy is the next of kin
Once a Caveat is issued, it is important that something else happens, that some steps are taken to resolve the queries that have led to the application for the Caveat in the first place.
Caveats remain in force for 6 months unless they are renewed or removed.
Removing a Caveat
A Caveat can be removed by the person who lodged it, requesting its removal.
If a person entitled to apply for a Grant wishes to have the Caveat removed they can serve a Warning on the holder of the Caveat. A Warning requires the person who lodged the Caveat to provide reasons why the Caveat should remain in force.
The response to a Warning is called an Appearance – it sets out the reasons why the Caveat should remain in force and results in the Caveat remaining on the Register until it is removed following the decision of a District Judge (or a Registrar if the parties later agree the removal of the Caveat).
If an Appearance is lodged and no agreement can be reached the only step available to the parties is the issue of proceedings to resolve the dispute – that is when legal costs are incurred and holding onto a Caveat when you should allow it to be removed will be a very expensive step, leading to costs being incurred by all parties.
Given that a Caveat can be lodged with relative ease, for a relatively low cost and without providing – as the procedure currently stands – any evidence to back up the block on the issue of a Grant, there is scope for mischief.
Lodging a Caveat when you should not, however, is a move that should be avoided.
Not liking the terms of a Will, not liking the Executor or just wanting to be difficult are all bad reasons for lodging a Caveat. Equally, taking no steps once a Caveat is lodged could result in a race to put together evidence to keep hold of it when a Warning is served.