Caveats in probate disputes - what are they, why should I apply for one, and how do I apply?

I have encountered a fair number of new enquiries recently where the obvious first step to take is to apply to enter a caveat at the Probate Registry. I, therefore, felt that it would be a topical yet timely reminder of what they are, why they can be useful, and how does one go about applying.

What is a caveat?

I have heard caveats referred to as a “first line of defence” and an “abuse of process”. They are, or can be, both of those things, and much more.

In many cases (but not all), it will be necessary for an executor or administrator to apply for probate or for a grant of letters of administration where no valid will can be found. Caveats are only applicable where a grant is required to administer an estate.

A caveat serves to place a temporary stop on the Probate Registrar issuing a probate application to the applicant. It lasts for an initial period of 6 months, and it can be renewed as you approach the expiry of the 6 month period. There is no limit to the number of times that you can renew a caveat.

Caveats do not operate retrospectively. It follows that a caveat applied for after the issue of a grant will be of no effect or use to you.

Why should I apply to enter a caveat?

Rule 44(1) of the Non-Contentious Probate Rules 1987 requires an applicant for a caveat to “show cause against the sealing of a grant”. A caveat is a notice to the Probate Registrar; it does not signify the commencement of court proceedings.

Therefore, if you have a claim or dispute arising out of someone’s death it is often the first port of call for you. It will first of all give you some breathing space to undertake the necessary investigatory work that you would need to do to consider a potential claim/dispute.

Due to the stifling nature of a caveat, it can (and often is) used as a tactical tool by litigators to draw disputing parties together and towards an early and swift resolution to a dispute.

It is common ground in the industry that contemplated claims under the Inheritance (Provision for Family and Dependants) Act 1975 should not be protected by a caveat and would be regarded as an abuse of process. That being said, and whilst I agree entirely with this and I have seen applicants criticised for this early pre-action conduct, I have never known it to have an impact on the court’s overall assessment of costs.

How can I apply to enter a caveat?

It is an easy process to apply for a caveat. My preference is the online method, using the court’s website. You will need to type out your key data relating to the deceased, such as their full name, any other aliases, date of birth, date of death, last known address etc.

You should take extra care with populating this information onto the online form. The caveat operates automatically using a computer system. Any application for probate will be flagged up only if there is a match in the deceased’s details in a probate application and in the caveat.

The fee currently payable is £3 and is payable again on each renewal.

You will be instantly issued with a caveat and a 16-digit reference number. You are protected for 6 months immediately from the time of your application.

Summary

Caveats are a key tool in every probate litigator’s armoury. It can be the single most important step to take at the start of any case. It can derive a tactical advantage and can buy some much-needed breathing space.

If you are contemplating applying for a caveat, or you wish to know more about them or even you would like our help in removing them, then please contact our Contentious Trusts & Probate team.