In order for a Will to be valid it must be written and signed in accordance with the law. It also needs to be witnessed by two independent witnesses. The person making the Will must have made the Will by their own free will and mustn't have been influenced or coerced by anyone. They must have capacity to outline their wishes and sign the document. If any of these things are amiss, then this could give rise to a challenge.
A Will should appoint executors, these are the people who are responsible for carrying out the wishes of the person who has died and distribute the assets to the appropriate people. To do this, they will often need to apply for a Grant of Probate. If a dispute arises regarding the validity of the Will, then it may be necessary to stop the Grant of Probate being issued and you can do this by entering a caveat at the Probate Registry.
What is a Grant of Probate?
A Grant of Probate is a court order and the official authority to deal with the estate of the person who has died. The grant is issued by the Probate Registry which is part of the High Court. A Grant of Probate can only be issued to the executors under a Will. You may hear this being referred to as “Probate”. Following the death, many of the assets will be frozen and the asset holders will only release the assets to the executors or administrators once they are happy they have the authority to act. The Grant of Probate evidences this authority.
What exactly is a caveat?
A caveat (also known as a stop) is a written notice that a person who wishes to prevent a grant being issued may enter in any registry or sub-registry. Generally, a caveat is used if a person wishes to prevent a grant, because they dispute the validity of a Will or who should administer the estate. By lodging a caveat, you will be notified of an application for a grant and given the opportunity to object to the issue of a grant.
A caveat therefore stops the executors from being able to obtain Probate and as such distribute the estate.
Why might someone enter a caveat?
You might want to challenge a probate application if there's a dispute, for example about:
who can apply for probate
whether a Will exists
whether a Will is legal
It is not intended for someone who wishes to make a claim against an estate for reasonable provision, where perhaps they have not been left anything or have not been left as much as they need. A caveat should only be used if you have a genuine reason for wanting to prevent the executor from obtaining probate. This can't just be because you do not necessarily agree with the terms of the Will.
How do I enter a caveat?
Stopping the grant being issued is relatively simple and you can do so online or by post. The caveat will last for 6 months and can be renewed. A caveat can be allowed to lapse or be removed voluntarily. Once the caveat expires, Probate can be granted.
What happens to the estate?
If a caveat is lodged, then it effectively brings the estate administration to a standstill and the executors will not be able to encash any assets nor pay any inheritance. This can cause significant issues, especially where properties are involved since:
the property might fall into disrepair
a sale might be lost or delayed
bills may not be paid and penalties applied
mortgage arrears could lead to repossession
It might be sensible for the executor to apply for a limited grant in this situation, which allows them to collect in assets but not to pay any inheritance.
Although entering a caveat is cheap and relatively easy to do, you should not take this decision lightly, this could impact upon a lot of people and may incur significant costs for the estate. Entering a caveat can lead to legal action and legal costs. You should always try to come to an agreement with the person applying for probate first. We would always suggest that you speak with a professional in the first instance who will be able to provide you with advice regarding your options.
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