Issuing a Caveat (objection) to challenge or temporarily stop a Will or Intestacy is a procedure used to stop a probate application for a Grant of Probate or Letters of Administration from being issued until the “caveator” (the person who has made the objection) has the chance to formally raise their concerns with the people applying for the grant Probate. Alternatively, they can make his or her case to the Court direct at vastly more expense, especially if they lose. But read this page carefully before doing anything. Should probate not be needed, the process is useless and you need professional advice: contact us to find as suitable adviser. Other beneficiaries may be upset by the delay this will cause.
Link: More on probate disputes. Link: Rules of Intestacy -no Will
What is a caveat? How to stop a probate application and dispute a Will.
Used without advice, they are a bit like cheap nuclear missiles with faulty guidance systems that can reverse the effect and blow up the person issuing the challenge to a Will or Intestacy leaving them to pay 6-figure costs to the other side for being either unprepared, blinkered or be seen as pig-headed and unwilling to listen to reason by the Courts, if it goes that far. Just because you may be morally right, doesn’t mean you are legally right. So my recommendation is that you contact us on 03 300 102 300 to find you a suitable professional who is experienced in this area and is not too expensive. Cheap is not necessarily good here, and the vast majority of solicitors firms have no special expertise in this area.
Link: More on contesting a Will
We do strongly recommend thinking hard (but not delaying) before you try to stop a probate application, as caveats can indirectly create considerable costs which can bounce back on you if the Court feels you had no or a poor case. If it goes as far as Court proceedings, then the sky is the limit on costs to challenge a Will and even the winner can end up heavily out of pocket. The executor acting will only find out that there is a challenge to the Will once the probate application goes to the Registry, so it may be better to consider issuing a caveat, and then advise the executor in advance so that there can be discussions and perhaps explanations or negotiations.
Link: Do I have a claim against an estate or probate argument checklist? The Claim Checker provides a simple and reliable answer, whether you are defending or considering a claim.
A probate caveat is a document that is sent to the Probate Registry to prevent the proposed executors or administrators of a deceased person’s estate from getting permission to administer the estate assets. Clearly, there must be sound reasons for submitting such an objection. If you want to check out the form to be used, here is the PA8A. But be very careful not to get carried away with moral indignity – this is a heavy duty legal matter. Caveats last for 6 months and should be renewed well in advance if an Appearance has not been entered – see below.
When is a caveat used to stop a probate application?
Some examples of when one may be useful to stop an application (temporarily) but you should always find evidence if at all possible. The more of these points (and any others) which are evidenced and relevant, the better:
- To create a “breathing space” to enable the caveator to find out if there are sound reasons to object to an application for Probate.
- The executor refuses to disclose a copy of the Will – even though you may not legally be entitled to one so, on its own, this may just be ineffective as a reason.
- The executor appears to be dealing with the assets in an inappropriate way – for example, selling a property well below market price, or misappropriating assets, or taking unreasonable “out of pocket” expenses. That said, houses and similar property cannot actually be sold until probate is granted, thought it is far from unknown for ill-advised executors to attempt to sell to people they know at an unrealistically low value. Perhaps use (link) https://www.zoopla.co.uk/home-values/ to get an idea (ROUGH – this is not a formal valuation.)
- Or as a way to bring concerns about the estate to the attention of the Registrar.
- Perhaps there is a suggestion that the Will is not really the LAST Will. Evidence?
- Or that the person was not “of sound mind” when making the Will. Evidence will be crucial if it goes any further.
- You can challenge a Will if you might have the right to benefit under the (link) Family & Dependants Act 1975 – basically, that you were entitled and or habitually received financial support from the deceased which is not reasonably reflected in the Will (or Intestacy if there is no valid Will.)
- A very common issue is that the testator was unduly influenced by one of the beneficiaries – not always easy to prove.
- Or the Will was not correctly signed and witnessed. Tough one if you haven’t seen the Will!
- The Will been altered in some way or is not genuine. As above.
- There is a dispute as to whether a genuine Last Will exists or whether the estate needs to be dealt with under the Rules of Intestacy. It is not uncommon for people to throw away a Will they don’t like if they think they may do better under the Rules of Intestacy, one of the reasons we recommend the (link) Peace of Mind Service.
- Maybe the person trying to apply for the grant of Probate is not actually entitled to do so.
- Or there’s a disagreement between people all of whom are entitled to apply for the grant of Probate and (commonly) one has gone ahead and refusing to allow the other to be involved – a common sign of malpractice.
- Perhaps there is real concern that the person applying for the grant of Probate is not trustworthy.
Who Can issue a Caveat?
Anyone can challenge an Intestacy or Will, but you had better have a good reason to stop a probate application, or the other side’s application for you to pay the extra costs of defending against your challenge is likely to be granted. Most usually, it is disappointed family members, people who have been promised something they have not received (often promissory estoppel is quoted), or people who were financially dependent on the person who died. Another issue is that the executors are trying to take control of something which did not belong to the deceased.
An Appearance is entered against the Caveat
If an Appearance is entered, the only way to remove the restriction, which will otherwise remain as a permanent fixture and stop probate being granted, is by either court proceedings being commenced and the court deciding the issue in dispute, or either party issuing a Summons seeking its removal which will be heard before a District Probate Registrar. An Appearance by the Caveator is a positive response to the Warning – making a representation to the Court that they still object to the issuing of a Grant, and setting out the interest the Caveator has in the estate, along with the reasons why they have lodged the objection to probate. The Warning must be responded to within days with a fully effective logical argument. Not having that ready will probably mean you automatically lose.
Is it appropriate to challenge a Will?
If you simply need to know if and when the grant of Probate has been issued, or need a copy, then what you need is a (link)”standing search” which will provide you with a copy of the Probate documents when they have been issued.
How to create a caveat to stop a probate application being granted.
You may do this yourself, or we can pass you on to a professional to at least see if you have a case, and perhaps assist in preparing a response to the WARNING the other side will send to tell you to put your case or go away and let the probate proceed. You get less than two weeks to respond, so you should prepare your facts the minute the document is posted: preferably well before, unless you feel that the process of applying for a grant is fairly advanced. Some simple estates, or ones that may be disputed, may be rushed through to the Courts.
If you are doing it yourself, you can write to the Probate Registry with the information needed, and the fee (at August 2022) of £3. Bear in mind that the “hold” only lasts 6 months and if you forget to renew it, probate may be granted unchallenged, and then things potentially start to get really expensive if you wish to continue to challenge the grant. Of course, once a “warning” has been issued, this can reduce to 14 days, which is hardly long enough to put a coherent case together.
How to Renew a Caveat – vital reading
HM Courts & Tribunals Service (HMCTS) do accept extensions by email into Leeds Probate Registry as they had previously. This was to align and embed the new (link) Form P.A.8.B which for an extension, and has to be sent by post to HMCTS Harlow address: HMCTS Probate, PO Box 12625, Harlow, CM20 9QE. With postal and scanning delays at Harlow, you really must send it in very early. Having said that, HMCTS say they do not “routinely” send out grants within 4 weeks of the caveated objection expiring – clearly not a delay you can rely on!
Before you do anything to stop a probate application from being granted:
Maybe it would be prudent to at least a (link) FREE initial chat with a specialist probate dispute law firm before you challenge a Will? You should be aware that there are very few firms dedicated to probate disputes, and picking the wrong firm could mean losing your home.