A Caveat has been obtained, should I issue a warning?

Once a Caveat is issued the usual process would be to try and engage with the person who issued the Caveat, known as the Caveator, in order to see why they have obtained the Caveat and if it can be removed by agreement. It is usual for a Caveat to be obtained whilst the parties, or their solicitors, investigate the validity of a will or any claims against the estate and obtain information from the will writer, witnesses and the Deceased’s medical notes. Ultimately if removal of the Caveat cannot be agreed, then the next stage may be to issue a Warning at the Probate Registry.

 Although both Caveats and Warnings are theoretically considered as non-contentious under the Non-Contentious Probate Rules 1987, the issuing and effects of Caveats and Warnings is usually very contentious and can often lead to court proceedings. As such it is appropriate to give some consideration as to whether it would be appropriate to serve the Caveator with a Warning before doing so in order to try and avoid any court proceedings.

 Warnings

If a Warning is served the Caveator has 14 days to undertake either of the following options:

1. File and Appearance at the Probate Registry; or
2. Issue a Summons for Directions at the Probate Registry.

If the Caveator does neither of these then the matter can proceed to probate.

 Filing an Appearance

In order to file an Appearance, the party being Warned needs to complete Form 5. Form 5 is not particularly detailed and only requires the Caveator to provide details of their interests together with the Caveator’s interest. You would however expect to receive some information on why the Appearance is being entered.

 Section 44 (13) of the Non-Contentious Probate Rules 1987 states:

 ‘Unless a registrar of the Principal Registry by order made on summons otherwise directs, any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action’

 Therefore, once an Appearance is filed the parties cannot obtain probate without an order from the Court or the Probate Registry.

 Summons for Directions

A Summons for Directions should be used when the party issued with the Warning wants the Probate Registry to do something but does not necessarily want to contest the Will. An example of this might be where both parties are named as Executors in the Will but do not think that the other is a suitable Executor. In this circumstance the party being Warned could apply to the Probate Registry by a Summons for Directions for the Probate Registry to consider who should obtain the Grant.

 Under Sections 44 (7) of the Non-Contentious Probate Rules 1987 the Probate Registry have the power to discontinue the Caveat should it consider it reasonable to do so.

 So, what do we do ?

Given the fact that once an Appearance is issued the Grant can only be obtained with an order of the Court or Probate Registry before issuing a Warning, we would usually write to the Caveator asking that they remove it. Often this leads to correspondence between the parties regarding why the Caveator feels that Grant should not be obtained which means that both parties then have the opportunity to consider each parties position before they take any further steps. It may be necessary to allow the Caveator time to fully investigate the estate (by obtaining information from the will writer, witnesses and the Deceased’s medical notes) and provide a Letter of Claim before taking any further steps.

 This often leads to the parties undertaking the Pre-Action Protocol or even mediation and resolving the dispute without the need of court proceedings.

 Whilst this can be seen as frustrating to the parties wanting to obtain the Grant is often quicker and less expensive than making an application to court. 

Are there any other options than a Warning ?

 A difficulty can often arise when the Caveator refuses to correspond with us meaning that we cannot try to understand why they obtained the Caveat in the first place and advise our client upon any potential claims against the estate. Or sometimes people will issue Caveats in circumstances where they are not required, such as when they intend to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 but still refuse or fail to remove the Caveat when advised of this.

 In these circumstances instead of issuing a Warning the parties could consider making an application to the Probate Registry by Summons for an order that he Caveator show just cause for the continuance of the Caveat. The advantage of this is that the Probate Registry also have the discretion to decide who should pay the costs of this application and we have received orders from the Probate Registry that the Caveator pays the costs of the application where it considered that the Caveat was not justifiable. 

 The risk with this application is that the Caveator responds to the application setting out their reasons for the Caveat and the Probate Registry decides that it should remain in place.

 Conclusion

 Sometimes it will be necessary for a party to take further steps in order to obtain the Grant and progress the administration of the estate. However, if a Warning is issued too early the Caveator may feel that they have no option but to issue an Appearance to protect their position (a common reason for this is when are still obtaining information to complete their investigations).

 It is therefore sensible to consider all the factors and try to engage with the Caveator before Warning is issued. Not only will this hopefully avoid the need for court proceedings, but it will also help with claiming the costs of any court proceedings if you can show the court that you have acted reasonably in trying to resolve any issues but the Caveator has not.