Using a caveat to prevent a grant of probate

What is a caveat and when would you use one to prevent a grant of probate? Laura Abbott of Wright Hassall explains what you need to know about probate caveats.

Probate Caveats

What is a caveat?

A caveat is a notice to request someone to suspend a specific action. In estate administration, it’s used to prevent a grant of representation – usually a grant of probate (where there is a will) or a grant of letters of administration (where there is not a will) – from being obtained on a person’s estate (money, property and possessions) when they die. 

A grant of representation is the legal authority for a person to administer the estate and the caveat is a notice to the probate registry to not process an application for a grant without first informing the person who lodged the caveat and providing them with an opportunity to respond to the application.

When would you use a caveat to prevent a grant of probate?

A caveat is most commonly used in probate where there is concern about the validity of the deceased person’s will. The caveat will stop someone from obtaining a grant and administering the estate while those concerns are being investigated.

This will then allow the beneficiaries (the persons receiving assets) to take time to digest what has happened, to receive and consider legal advice, and to make investigations. This can include obtaining information from the solicitors who prepared the will and obtain medical records or evidence from witnesses.

A caveat is also sometimes used to prevent a grant of representation being obtained where there is a dispute as to who should apply for the grant or if there are concerns that the executor (the person named in the will to deal with the estate) is not suitable and their removal is being considered.

How do you enter a probate caveat?

The procedure for entering a caveat involves a straightforward application to your local district probate registry. You must be 18 or over and live in England and Wales, and you can do it yourself without the assistance of a solicitor. You can either:

You will need to know the full name, date of death and last known address of the person who has died. It costs £3 to enter a caveat.

What happens once a probate caveat has been entered?

When a caveat is entered, nobody is automatically notified but the person applying for a grant will be informed of the caveat when they make their application. In this situation, they may then decide to allow a reasonable time period for the person who made the caveat to make their enquiries. However, the person applying for a grant may decide to ‘warn off’ the caveat (see below).

If there is a reason why a grant is needed urgently in order to protect or preserve assets (for example, to allow a property sale to take place or to stop high interest accruing on an equity release scheme) then a limited grant can be obtained to allow the executors to collect in assets, pay liabilities etc, but not to distribute the estate (and potentially dissipate assets).

How long does a probate caveat last?

Once entered, the caveat will remain in place for 6 months. However, it can be renewed every 6 months thereafter:

  • If you do want to renew the caveat, you should contact the probate registry in the month before it’s due to expire. A further fee will be payable.
  • If the caveat is not renewed, it will automatically cease and any pending or new application for a grant (or application made thereafter) will be processed.

If at any time the person who entered the caveat wants it to be removed, a simple letter to the probate registry requesting its withdrawal should be enough to allow the estate to be administered.

It should be noted that it’s an abuse of process to enter or leave in place a caveat without legitimate reason. If, however, there remains cause for concern then steps should be taken to obtain legal advice and potentially pursue a contentious probate claim.

Can you challenge a probate caveat?

The person applying for a grant may decide immediately, or after a reasonable time period has expired, that the caveat should no longer reasonably be in place. In those circumstances, a formal document known as a warning can be issued to the person who made the caveat by the person applying for a grant to try and remove it. Once served with the warning, the person who made the caveat has 14 days to enter an appearance (a formal document, not a physical appearance) – this will keep the caveat in place.

If an appearance is entered, then the caveat will be permanent and can only be removed with the consent of the parties or by an order of the court. If no appearance is entered within the 14 day time period, then the person who issued the warning will need to prepare an ‘affidavit of service’ of the warning to arrange for the caveat to be removed by the probate registry to allow the grant application to proceed.

Both the warning and the appearance cost nothing to issue or enter, however there are costs consequences for both parties if the court considers that either party has acted unreasonably. If an appearance is entered and the caveat needs to be removed by court order, and if either party has instructed a legal representative, then there may be costs consequences relating to the legal fees incurred. Courts will not tolerate caveats being entered or being left in place on false grounds; likewise, they will penalise unreasonable warnings:

  • In the recent case of Elliott v Simmonds [2016] EWHC 732 (Ch), the person who entered the caveat faced liabilities in excess of £100,000 after allowing her caveat to remain in place despite having all the documents which proved her will validity claim had no merit.

Should a probate caveat be used for inheritance disputes?

A caveat is not recommended if someone wants to bring a claim for ‘reasonable financial provision’ from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Such a claim must be brought within 6 months of the grant being issued (and in certain circumstances applications can be made out of time with the permission of the court) and instead an application for a standing search can be made by the potential claimant in order to be notified of the issue of a grant to ensure this timeframe is not missed. A caveat should not be entered to ‘buy more time’.

About the author

Laura Abbott is an Associate in the contentious probate team at Wright Hassall and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

How to remove an executor of a will

How to use a deed of variation to change someone's will after death

Disputing a will using fraudulent calumny

Contesting a will on the grounds of undue influence, fraud, or forgery

Find out more

Stopping a probate application (GOV.UK)

Form PA8A: Apply to stop a grant of probate by post (GOV.UK)

Inheritance (Provision for Family and Dependants) Act 1975 (Legislation)

Image: Getty Images

Publication date: 15 October 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.