HCR Law Events

6 March 2020

Can I stop probate being granted pending my own investigations into the validity of the Will?

As a leading firm with a specialist contentious trusts and probate team, one of the most common enquiries we receive, are from disappointed family members wishing to challenge a relative’s last Will. Specifically, many of our clients want to know if it is possible for them to stop probate being granted, whilst they investigate the validity of the Will in question. Below are some of the key questions we are frequently asked related to this subject, which we hope you find helpful.

What is a Grant of Probate?

When a person dies, it is the responsibility of the named executor under the Will, to collect in the assets of the estate, pay any liabilities and distribute the remaining assets in accordance with the terms set out in the Will. More often than not, the executor will require a legal document, known as a Grant of Probate (“Grant”), in order to effectively deal with the estate assets. Once a Grant has been issued by the probate registry to the executor, the executor can begin their job of collecting in and distributing the deceased’s estate.

What if I dispute the validity of the Will?

If the validity of the Will is disputed, ideally you want to have brought your claim before the estate is distributed to the named beneficiaries under the disputed Will. If the Will is subsequently found to be invalid, tracing and recovering estate assets which have already been distributed under the invalid Will can be a lengthy and costly process.

How do I stop a Grant of Probate?

A caveat prevents a Grant of Probate from being issued temporarily in an estate and therefore delays the distribution of the estate assets. This allows the person entering the Caveat time to carry out investigations into whether there are grounds for bringing a claim.

Entering a caveat is a relatively simple process. You can apply for a caveat online through the Probate Service website. It is also possible to make an application in writing. Alternatively, you can instruct a solicitor to apply for a Caveat on your behalf.

The caveat currently costs £20 to register and remains in place initially for a period of 6 months.

Can I enter a Caveat for any reason?

No. Reasons why you may want to prevent a Grant being issued include:

  • Concern about whether the Deceased’s last Will was validly executed
  • Concern that the Deceased lacked testamentary capacity to make the Will at the relevant time
  • Concern that the Deceased did not know or approve the contents of their Will
  • Concern that the Deceased’s Will came about as a result of the undue influence of a third party
  • The person who intends to apply for the Grant is not a suitable person to act, or may abuse their position
  • Concern that the testator’s estate will be disposed of in a manner contrary to the terms of the Will or intestacy provisions
  • Concern that the intestacy provisions are not applicable as the Deceased did leave a valid Will

What happens when a Caveat expires?

A Caveat will last 6 months from the date it is lodged. You can extend this period for a further six months, the month before the caveat is due to expire. You will pay a further £20 fee at this time.

If the Caveat is not extended, the caveat will lapse after 6 months allowing probate to be granted thereafter.

Can my Caveat be challenged?

If the named executor wishing to apply for probate objects to the entry of your caveat, they may issue a Warning off Notice against the caveat. Following service of such a Warning, if you wish the caveat to remain in place, you must submit an Appearance to the Probate Registry within 14 days, setting out your interest in the Deceased’s estate (i.e. under a previous Will) and your reason for the entry of the caveat.

If an Appearance is entered, the Caveat will remain in place until the Court orders its removal, or the parties agree to its removal by consent. If an Appearance is not entered within the time period, the Caveat falls away and the application for the Grant of Probate will proceed.

We strongly recommend that you take legal advice before entering an Appearance, since there may be costs consequences for you in the future, if a Court deems that the entry of the Caveat was unwarranted in the first place. Expert advice should therefore be sought at the outset.

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About the Author
Beth King-Smith, Partner, Head of Disputed Wills, Trusts & Estates and Worcester Private Client team

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