A quick guide on how to remove a caveat
It can come as a shock when an application for a grant of probate is rejected because a caveat has been entered against the estate. Often this will be the first time the executors and beneficiaries learn of the potential dispute, as there is no requirement to notify other interested parties when a caveat is entered. Entering a caveat prevents the administration of the estate. No Grant of Probate can be issued while it remains in force. Positive action must therefore be taken.
So what can be done when this discovery has been made? In this quick guide on how to remove a caveat, we look at some of the legal issues that will need to be considered and the steps that can be taken to enable the administration of the estate to continue.
In summary, a caveat can be removed by the caveator, by issuing a Warning, by consent between the parties or by a court order.
Removal of a caveat by the caveator
If the person who has entered a caveat (the caveator) no longer feels it is necessary or has decided not to pursue a probate challenge, they can remove their caveat by writing to the Probate Registry, as long as the caveat has not been challenged. If the caveat has been challenged and has been sealed as a result, it can only then be removed by consent or by the order of the Court.
Removal of a caveat by issuing a Warning
If you are an executor or beneficiary under a will, you are classified in law as a party with an interest in that estate. If a caveat has been issued in an estate in which you have an interest, you may choose to request that the caveat be removed. This can be done by asking the caveator to remove the caveat. If they refuse, you can issue a Warning at the Probate Registry. A Warning is a notice which is issued by the Probate Registry and then served on the caveator. Within the Warning you must set out your interest in the estate and details of the will in dispute. Once the Warning has been issued, it must be served on the caveator, who then has eight days to respond by either entering an ‘appearance’ or issuing a summons for directions. If neither of these steps is taken, the caveat will cease to have effect.
If an Appearance is entered
If the caveator is served with a Warning and wants their caveat to remain in place, they can enter an Appearance at the Probate Registry. This will have the effect of sealing the caveat and means that consent between the caveator and the person who issued the Warning, or by order of the court, can then only remove it. The Appearance is entered by post and must be served on the person Warning the caveat.
Seeking a court summons for directions
An alternative to entering an Appearance is to issue and serve a summons for directions. This must also be done within eight days of service of the Warning. The outcome will be a hearing before a District Judge or Registrar to reach a decision on who should take out a grant. This is less common than entering an Appearance and is more likely to be used where the disagreement is over who should take out the grant.
How to remove a caveat that has been sealed
If a caveat has been sealed following the entry of an Appearance, the caveat can be removed by consent between the parties. This requires a summons to be prepared and filed with the court, along with a consent order. If the parties cannot agree on removing the caveat, then a probate claim may need to be issued in court. This is the first step to getting a court order for the caveat to be removed. There can be significant costs implications for the unsuccessful party in this scenario.
Time limits
In addition to the costs risks, there are tight time limits involved with the removal of a caveat, and it is advisable to obtain specialist legal advice without delay when you discover the existence of a caveat or receive a warning. Given the potential cost consequences if a disputed caveat leads to court proceedings, it is important to seek immediate guidance on your position and the options available to you from solicitors who are experts in this area of law.
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