PROBATE DISPUTES: GRANTS OF REPRESENTATION AND CAVEATS
The caveat and probate disputes
It is an unfortunate truth that death often brings with it family disputes.
It is important to take steps to try and prevent such disputes escalating out of control and prompt action is always incredibly important.
In a probate dispute, the best course of action is to prevent the administration of the estate whilst that dispute is resolved.
Where a person dies, their personal representatives will be responsible for administering their estate. Where there is a will, this person is known as the executor, and where there is no will, they are known as administrators. In either case, they would apply to the court what is known generally as a “grant of representation”. Where there is a will, the grant is more specifically known as “the grant of probate”. Where there is no will, it is known as “the grant of letters of administration”.
Once the grant has been obtained from the court, the representative can undertake the administration of the estate. This will include such things as the sale or transfer of property or the closing of bank accounts and distribution of assets.
In order to prevent assets being distributed before any private dispute is resolved, the grant of representation should have been prevented.
Eligibility
In order to oppose a grant of representation being made, you must:
- Be over 18 years of age; and
- have an interest in the deceased’s estate or an interest in the estate that is different to the person applying for a grant.
In a probate dispute, to prevent the grant being made, a caveat needs to be lodged at the Probate Registry.
A caveat can be lodged where there is a dispute over:
- the validity of a Will;
- the existence of a Will; or
- the capacity of the Personal Representative.
It can, in addition, be used where an individual wishes commence either a probate claim or citation proceedings.
What affect does the caveat have in a probate dispute?
A caveat is a written notice to show that a grant of representation should not be issued without the notification of the caveator (the person entering the caveat). Once a caveat is lodged, it prevents the grant of probate or letters of administration from being made.
Once lodged, it has effect for six months from the date of entry and can be renewed every six months until removed.
The purpose of a caveat is to notify the probate registries that a grant of representation should not be issued until the caveat is removed and provides time for the caveator to gather evidence to support their position and obtain legal advice.
The limits of a caveat in probate disputes
Be warned, however, a caveat will not prevent a grant being issued where:
- There is an urgent need to achieve a particular transaction which is limited to a particular purpose in the deceased’s estate;
- The court orders that the caveator’s actions have been vexatious and an abuse of process;
- A grant of representation was issued on the same day as entry of the caveat; or
- Where a “grant pending suit” has been granted which is the grant of administration pending the determination of a probate claim.
It is, therefore, important to act quickly if you wish to dispute the will or take issue with the personal representative – once a grant of representation has been granted, the estate can be distributed and a caveat cannot be lodged.
For further information about the services that we can offer, either by assistance in lodging a caveat, or more generally in respect of a probate dispute, please contact us on 0121 306 0170.
