When a loved one passes away and leaves a Will, the process of administering their Estate begins. This responsibility typically falls to the Executors named in the Will, who must apply for a Grant of Probate to carry out their duties. However, questions may arise about the validity of the Will being used to obtain Probate. In such cases, interested parties may look in to challenging the Will, raising concerns about issues like undue influence, lack of testamentary capacity (the mental capacity to make a Will), or improper execution. These challenges can delay the probate process and require careful legal consideration to resolve.
What Is a Grant of Probate?
A Grant of Probate confirms the Executor’s legal authority to administer the deceased’s Estate. This authority allows the Executor to:
- Close bank accounts.
- Sell or transfer property.
- Settle debts and expenses.
The Grant also proves the validity of the Will, providing assurance to financial institutions, buyers, and other involved parties.
Delaying the Grant of Probate
In some cases, it may be appropriate to delay issuing a Grant of Probate. Common reasons include:
- Doubts about the Will’s validity.
- Objections to a specific Executor.
- The possibility of discovering a more recent valid Will.
A legal mechanism known as a Caveat can be used to delay the grant.
What Is a Caveat on Probate?
A caveat is a formal notice that stops Probate from being granted until the person who filed the Caveat (the Caveator) is notified. This process gives the Caveator time to investigate concerns regarding the will or the Executor’s suitability.
It is important to note that a Caveat is typically inappropriate for claims under the Inheritance (Provision for Family and Dependents) Act 1975. In such cases, a standing search procedure is more suitable.
A Caveat can be entered by anyone with an interest in the estate who is at least 18 years old. It must be entered by a sole Caveator, as joint Caveats are not permitted.
How Is a Caveat Discovered?
Executors typically learn of a Caveat’s existence only when their application for a grant of probate is rejected. At this point, they are notified about the Caveat and may take steps to challenge it.
How Do I Challenge a Caveat?
A Caveat can be challenged by issuing a Warning, which is then served on the Caveator, the Caveator has 14 days to respond. The Caveator’s options include:
- Entering an Appearance: This written response outlines the conflicting interest and keeps the Caveat in place until resolved.
- Withdrawing the Caveat: The Caveator can withdraw it at any time, provided they have not already entered an appearance.
- Issuing a Summons for Directions: If the concern is about the Executor’s suitability rather than the Will’s validity, the Caveator may request the court’s direction.
- Taking No Action: If the Caveator does not respond, the Caveat is removed after 14 days, allowing the grant to proceed.
What Happens After an Appearance Is Entered?
Once an Appearance is entered, the Caveat becomes permanent unless removed through one of the following:
- A court order by a district judge or registrar.
- Agreement among all parties to discontinue the Caveat.
- Commencement of a Probate claim in the High Court.
Cost Considerations
Challenging a will or Executor appointment can be costly. Once an Appearance is entered, removing the Caveat often requires formal legal action, incurring significant expenses. Additionally, losing a claim may result in liability for the opposing party’s legal costs.
To avoid unnecessary costs and complications, seeking legal advice early is crucial. Understanding the evidence and exploring all available options can help determine whether pursuing a claim is the right course of action.
The Probate process can be complex, particularly when disputes arise. It is very important not to delay in issuing a Caveat if there is a belief that the Will is not valid. Without a Caveat, the Executors can begin to distribute the Estate, and this may result in the assets of the Estate being lost forever. Understanding how Grants of Probate and Caveats work is essential for Executors and Beneficiaries alike. If you’re considering challenging a Will or delaying Probate, consult with a legal professional to ensure your interests are adequately protected and to navigate the process effectively.
If you need advice or legal support surrounding challenging a Will, our team have the experience and knowledge to help.
Get in touch with our team today on 0333 004 0272 or book a free consultation here.
