An Introduction To Caveats

 In Probate

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What are caveats?

Caveats are a system of preventing common form grants. They are important where there are genuine concerns about the validity of a Will or the suitability of a particular person acting as executor or administrator. The caveat procedure is used to prevent a Grant of Probate or Letters of Administration being taken out in respect of a Deceased’s estate. The person who puts the caveat in place is called the caveator.
Once a caveat has been entered, the onus moves to those seeking to prove the Will to take action to remove the caveat, as it stops a grant being issued until the caveat has been removed.

What is the rationale for entering a caveat?

  • to give the caveator time to make enquiries and obtain information to decide if there are grounds for opposing the grant
  • to give any person interested in the estate the opportunity to bring a question in respect of the grant before the court on summons
  • as an initial step to a probate claim or to the issuing of a citation

It is not sensible for a potential claimant under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFD 1975) to enter a caveat. A claim under IPFD 1975 is against the Deceased’s estate and not a claim for an interest in the estate. It has also been criticised as a tactic by the judiciary.

What is the Procedure?

Entry of caveat

A caveat can be entered by applying online, with the completion of Form PA8A and posting it to the address set out in that form.

The fee is presently £3 and that makes it very cost effective.

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What happens next is the registry will send a copy of the caveat to the Principal Registry and notify the Leeds District Probate Registry (the nominated registry) where an index of all caveats is kept.

The caveat will remain in force for six months from the date it is entered unless it is extended.

Warning

If the person(s) propounding the Will believe there is no justified reason for preventing a grant, they can enter a warning to the caveat.

The procedure to issue a warning is to complete Form 4 and submit it to the Leeds District Probate Registry.

There is no fee payable for doing a warning to a caveat.

The Leeds District Probate Registry will record the Warning, stamp it with the court stamp and return it to you. A copy of the warning must then be served on the caveator either personally, by post or by document exchange.

The warning is an effective notice to the caveator that they have 14 days including the day of service to:

  • lodge an appearance setting out their contrary interest in the estate, or
  • if they have no contrary interest but object to the sealing of a grant, to issue and serve a summons for directions (returnable before a district judge of the Principal Registry or a district probate registrar)

Appearance

The appearance, using Form 5 is lodged by the caveator must indicate the contrary interest or the appearance may be rejected.

If the caveator enters an appearance to the warning within 14 days, no grant can issue without an order of the court so the Warning makes the caveat effectively permanent unless the Court intervenes. E.g. Proceedings are commenced by a probate claim, or an order made on summons by a district judge of the Principal Registry or by a registrar.

The procedure to make an Appearance is a caveator must submit Form 5 to the Leeds District Probate Registry. No fee is payable on the entry of an appearance.

A copy of the appearance is immediately served on the person who lodged the warning.

What happens next?

The more usual course of action for an executor after an Appearance has been entered is to bring a probate claim asking the Court to pronounce for the will in solemn form. This is done by issuing a Part 7 claim form in the Chancery Division (or out of one of the Chancery district registries). If the will propounded by the executor is found to be valid, the court pronounces for its validity and the executor entitled may apply in the usual way for a grant of probate in a probate registry.

The procedure for probate claims is governed mainly by CPR Part 57, the associated Practice Direction PD 57  and the Chancery Guide.

What else do you need to think about?

Litigants must give consideration to pre-action steps and consider their conduct. There is no approved pre-action protocol for probate claims and the CPR

In addition, the Association of Trusts and Probate Specialists (ACTAPS) offers a suggested protocol document that can be used for probate claims known as the ACTAPS Code which includes other resources and templates.

What I consider to be of real importance are the provisions in CPR Part 44.2.

As with other types of action, costs in actions disputing a Will are in the discretion of the court and the general rule is that costs follow the event (SCA 1981, s 51 and CPR 44.2).

However, there are some exceptions to this rule which are worth bearing in mind which are either within case law or the CPR.
If the litigation has been caused by the conduct of the testator, the costs of the unsuccessful party can be ordered to be paid out of the estate.(Spiers v English [1907] P 122)

In addition, if there are reasonable grounds for enquiring about the circumstances of the execution of a Will and/or the capacity of the testator. ‘Those who are instrumental in bringing about…this enquiry is not wholly in the wrong, even if they do not succeed; and so it comes that this court has been in the practice on such occasions of deviating from the common rule in other courts, and of relieving the losing party from costs’ (Mitchell v Gard). [1863] 3 Sw &Tr 275

Otherwise if notice to cross-examine is given under CPR 57.7(5). This provides that a defendant may give notice in their defence that they do not raise any positive case, but insists on the Will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the Will. The rule states that if a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the Will.

However, the Court exercised its discretion (and 57.7(5)(b) of the CPR) to order that the defendant should pay the claimant’s costs, but only from the point at which she and her professional advisers had sufficient information to enable them to form a view about whether there was a reasonable ground to challenge the Will. This happened in the case of Elliott v Simmonds and others (2016) EWHC 962 (Ch).

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