A brief guide on how to remove a caveat
It can come as a shock when an application for a grant of probate is rejected because a caveat has been entered against the estate. Often this will be the first time the executors and beneficiaries learn of a potential dispute as there is no requirement to notify other interested parties when a caveat is entered. Entering a caveat prevents the administration of the estate. No Grant of Probate can be issued while it remains in force, leading to much frustration for executors and beneficiaries. Positive action must therefore be taken.
So, what can be done when this discovery has been made? In this very brief guide on how to remove a caveat we look at some of the legal issues that will need to be considered and the steps that can be taken to enable the administration of the estate to continue.
Removal of a caveat by the caveator
If the person who has entered a caveat (the caveator) no longer feels it is necessary or has decided not to pursue a probate challenge they can remove their caveat by writing to the Probate Registry, provided the caveat has not been challenged. If the caveat has been challenged and has been sealed as a result it can only then be removed by consent or by the order of the Court.
Removal of a caveat by another interested party
If you are an executor or beneficiary under a will, you will be regarded as a party “with an interest” in that estate. If a caveat has been issued in an estate in which you have an interest, you may choose to request that the caveat be removed. This can be done by asking the caveator to remove the caveat. If they refuse, you can issue a warning at the Probate Registry. A warning is a notice which is issued by the Probate Registry and then served on the caveator. Within the warning you must set out your interest in the estate and details of the will in dispute. Care needs to be taken when setting out the interest as mistakes can lead to delay, or at worst, rejection of your application. Once the warning has been issued it must be served on the caveator who needs to respond by either entering an ‘appearance’ or issuing a summons for directions. If neither of these steps are taken the caveat will cease to have effect. Strict time limits apply.
If an appearance is entered
If the caveator is served with a warning and wants their caveat to remain in place they can enter an appearance at the Probate Registry. This will have the effect of sealing the caveat and it can then only be removed by agreement between the caveator and the person who issued the warning, or by order of the Court. The appearance is entered by post and must be served on the person warning the caveat.
Seeking a summons for directions
An alternative to entering an appearance is to issue and serve a summons for directions. This must also be done strict time limits follwoing service of the warning. The outcome will be a hearing before a District Judge or Registrar to reach a decision on who should take out a grant. This is less common than entering an appearance and is more likely to be used where the disagreement is over who should take out the grant.
How to remove a caveat that has been sealed
If a caveat has been sealed following the entry of an appearance the caveat can be removed by consent between the relevant parties. This requires a summons being prepared and filed with the court along with a consent order. If the parties cannot agree on removing the caveat then a probate claim may need to be issued in court. This is the first step to obtaining a court order for the caveat to be removed. There can be significant costs implications for the unsuccessful party in this scenario.
Time limits
In addition to the costs risks there are tight time limits involved with the removal of a caveat and it is advisable to obtain specialist legal advice without delay when you discover the existence of a caveat or receive a warning. Given the potential cost consequences if a disputed caveat leads to court proceedings it is important to seek immediate guidance on your position and the options available to you from solicitors who are experts in this area of law. Here at Keelys we have experts who have years of experience in this area and have undertaken in depth further training with ACTAPS, the specialist Association for lawyers in this complex field of law. Contact pfarrington@keelys.co.uk or call us on 01543 420000 and ask for the Litigation department for further information.