A caveat can be entered (i.e. lodged) at the Probate Registry to stop a Grant of Probate being issued. A Grant of Probate is a legal document that may be required in order for the executors to be able to administer an estate of a person who has died.
As of the 27 November 2018, Her Majesty's Courts and Tribunals Service changed some of the processes relating to caveat applications. This fact sheet takes into account these amendments.
When to enter a caveat?
A person who is entering a caveat will usually do so because:
- They want to dispute the validity of the will being admitted to probate (for example, because they believe the testator did not have capacity to make the will, the will is fraudulent or there is a more recent will etc); or
- They have concerns that the person applying for a Grant may not be the person entitled to do so, or may abuse his/her position as executor.
If a person intends bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, it is usually inappropriate to enter a caveat. Instead, the standing search procedure should be used.
How do I enter a caveat?
A caveat can be entered by email (if the fee is paid by use of a PBA account), by post or in person at any Probate Registry. There is a caveat application form PA8A, but the request can also be made without the form so long as it is made in writing with the following:
- A request that a caveat be entered
- The applicant's name and address
- The full name, date of death and last permanent address of the deceased (as recorded in their death certificate)
The fee for entering a caveat is £20. The caveat will remain in place for six months. After this period the caveat will expire with no notification being given. The six month period should be used to investigate the potential claim. It is recommended that the applicant (the "caveator") seeks legal advice as soon as possible.
A caveat can be extended any number of times on payment of a further £20 each time.
Once the caveat has been entered the caveator will receive a letter of confirmation from the Probate Registry, which will include the caveat reference number.
How is the caveat discovered?
Unless the caveator notifies the proposed executors (there is no obligation to do so), the executors may not discover the caveat until they apply for the Grant of Probate.
How is the caveat removed?
If the caveator wants to remove the caveat, they can write to the Probate Registry and ask them to remove it, providing that it has not been made permanent (see below).
As set out above, unless the caveat is renewed, it will expire after six months. The person intending to apply for a Grant may choose to wait out the 6 month period in the hope that the caveator won't extend their caveat and they will then be able to apply for a Grant.
If not, in order to try and remove the caveat, the first step is for the proposed executor to "issue a warning".
A warning is a formal document requiring the caveator to remove the caveat or state why they believe it should remain in force by "entering an appearance".
A warning can be issued at the Probate Registry by post using form 4 of The Non-Contentious Probate Rules 1987. A copy of the form can be obtained from your local Probate Registry.
The person issuing a warning must state their interest in the estate (i.e. that they are the proposed executor of the estate or, if there is no will, they are the person entitled to a grant in accordance with the intestacy rules). There is no fee for issuing a warning.
The issued warning is then served on the caveator and the caveator has fourteen days to lodge their response at the Probate Registry by entering an appearance.
If an appearance is not entered, when an affidavit of service of the warning is lodged with the Probate Registry the caveat will be removed. If, however, an appearance is entered then the caveat will become permanent (see below).
Before entering an appearance we strongly recommend that legal advice is sought as the issue of costs becomes material at this stage. There is a possibility that a party could become liable to pay not only their own costs but those of the other party as well.
An appearance can be lodged using form 5 of The Non-Contentious Probate Rules 1987. A copy of the form can be obtained from your local Probate Registry.
The timescale for entering an appearance following a warning to a caveat is fourteen days (calendar days including weekends and bank holidays). Once an appearance has been issued it must be served on the person who lodged the warning. If an appearance is entered the caveat becomes permanent and will not be removed unless:
- Either party issues a summons seeking an order for its removal. That summons which will be heard by the District Probate Registrar. The summons should be lodged in the Registry where the grant application (if any) is pending;
- Either party commences a probate action in the Courts in relation to the estate.
Please note that this factsheet has been prepared a general guide only and it is not a substitute for taking legal advice. Penalties can be imposed where the caveat process is used inappropriately so, ideally, expert legal advice should be sought at the outset.