Even though, under the principle of testamentary freedom in English law, it is open to an individual to bequeath their assets and belongings to whomever they choose, it is not uncommon for loved ones to dispute a deceased’s will.
Indeed, disputes can arise in all sorts of ways, not least where a loved one seeks to challenge the validity of a will on the basis of either improper execution, lack of mental capacity, coercion or even fraud. Disputes can also commonly arise where someone dies intestate, ie; without a will, but there are legitimate concerns about the suitability of any next of kin in administering the estate.
In order to prevent the deceased’s estate from being distributed prior to raising and resolving any concerns, it may be necessary to enter a ‘caveat’ to prevent the personal representatives from seeking a grant of representation.
What is a grant of representation?
A grant of representation is the legal authority given to a named individual, or individuals, required to administer a deceased’s estate. There are two types of grant, ie; a grant of probate (for the executors of a will) and letters of administration (for the deceased’s next of kin where there is no will).
The grant of representation will allow the named personal representative(s) to settle any debts and liabilities, including taxes and funeral expenses. The grant will also allow these individuals to distribute any money, property and personal possessions that belonged to the deceased, in accordance with either the terms of the will or the rules of intestacy.
What is a caveat?
A caveat is a legal means of preventing the personal representatives from obtaining a grant of representation. In this way, the executors or any next of kin will not be granted the legal authority to collect in the deceased’s assets nor, more importantly, to distribute the deceased’s estate until the matter is resolved.
How do you enter a caveat?
To enter a caveat in England and Wales, you will need to file a short application with the Probate Registry. The fee to do this is currently just £20. Once lodged, a grant of probate cannot be issued until the caveat has been removed or expired. The caveat will only remain in place for six months, but it can be renewed.
When should a caveat be used?
A caveat should only be entered against a deceased’s estate where there is some doubt as to the validity of the deceased’s will or, alternatively, where there are issues as to the suitability or eligibility of the person(s) applying for the grant.
When should a caveat not be used?
A caveat should not be used if someone has received less than they expected under a valid will. This could include, for example, where a dependant is looking to the court to vary the distribution of the deceased’s estate where there has been inadequate financial provision otherwise made for them.
The use of a caveat in these circumstances could result in the imposition of financial penalties.
When should a caveat be lodged?
If you are looking to lodge a caveat, it is essential that you do so as soon as possible to avoid a grant of representation being obtained.
It is also recommended that you seek legal advice at the earliest possible opportunity in a bid to resolve any concerns about the validity of the will, or the suitability of the personal representatives, without recourse to legal proceedings.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.