Challenging an Executor of a Will with Probate Caveat
(Last Updated: 08/12/2023)
15/06/2017
6
9 min read
If you have concerns about the Executor applying or believe they don't have the right to do so, you can enter a probate caveat to temporarily stop the grant being issued whilst you investigate further. This makes you the 'Caveator'.
This sets out:
If a probate application is approved the same day you submit a caveat, it will not be stopped. To submit your caveat urgently, make an appointment to visit a probate registry.
You must ensure that the details are correct, otherwise, the caveat will be ineffective. You can still apply for a caveat without a death certificate, however, you must provide as much information as you know about the deceased and as accurately as you can make it. If you do not know the exact date of death, you must amend the caveat as soon as you know it.
If, following your entry, your investigation determines that you do not have a claim against the Executor, you may amend or withdraw the caveat by email (contactprobate@justice.gov.uk if you applied online, or leedsdprenquiries@justice.gov.uk if you applied by mail) or post. Include:
You will need legal advice to decide how to respond to a warning. If you fail to respond within 14 days (including weekends and bank holidays), the applicant can apply to have your caveat removed by the court.
The Registrar will make the caveat permanent if they agree with your reasons, at which point it can only be removed by a District Probate Registrar, High Court Judge or District Judge.
If the Executor who applied for the grant has issued a warning against you and you have entered an appearance which is accepted, either of you may now take matters further through the courts. This process can be costly, and you should seek the support of a probate solicitor to help you.
If you've issued a summons, the Registrar will decide who is entitled to apply for probate, or they may suggest an independent administrator handles the estate instead.
Our team of Wills and Probate solicitors are on hand to help handle this for you. We provide a fixed fee for all the work from grant of probate to final distribution. Call our specialists on 0333 344 3234 or email help@samconveyancing.co.uk.
When a person dies, they usually leave an estate (including money, possessions and property), and sometimes a will. Within the will, the deceased will have set out the names of one or more executors to handle their affairs after they die - collecting the assets, settling any debts, paying any inheritance tax and then distributing any balance to the stated beneficiaries. (If there is no will, someone must apply to be the Administrator of the estate, whose function is similar to an Executor).
To fulfil their role, the Executor will need to get a Grant of Representation from the Probate Registry. For the majority of Executors, the application for probate is straightforward and follows this 4-step process:
To fulfil their role, the Executor will need to get a Grant of Representation from the Probate Registry. For the majority of Executors, the application for probate is straightforward and follows this 4-step process:
- 1
Complete a Probate Application Form PA1
2Complete an Inheritance Tax Form
(Important - Whether you have inheritance tax to pay or not, you'll still need to complete an Inheritance Tax Form and submit it to HMRC)
3Send your application to your local Probate Registry
4Swear an oath
When should you use a probate caveat?
A probate caveat should be used for challenging an executor of a will before probate is granted. This will prevent a grant of probate from being issued for 6 months whilst a Caveator investigates whether there are grounds to oppose the grant. It can then be extended by a further 6 months if required.Grounds for entering a Caveat
Examples of reasons for challenging an executor of a will from the HM Courts & Tribunal Service:- The will may not be legal – for example, is it the deceased person’s last will? Was the deceased ‘of sound mind’ (mentally competent) when it was made? Was it properly signed and witnessed? Has it been tampered with? Did the deceased re-marry or enter into a legal civil partnership after the will was made?
- The person intending to apply for a grant may not be entitled to do so; or
- There may be a dispute between people equally entitled to apply for a grant.
Who can put a Caveat on Probate?
- Anyone over 18
- living in England or Wales, or be represented by a solicitor in England or Wales
- You must be able to show that you have one of the following interests in the will:
- an interest – in other words, you are entitled to share in the estate;
- a contrary interest – in other words, you have a different interest from the applicant for a grant.
How do I enter a caveat?
You can apply online for £3.This sets out:
- A formal written request for a caveat to be entered
- Full details about the deceased person, including exact date of death and last permanent address (you'll need the information from the Death Certificate)
- Your name, address and the same of your solicitor
You should enter a caveat as soon as possible
It does not signify the commencement of court proceedings, so you do not have to be sure that you have a strong claim before you apply. The probate caveat is designed to give you some breathing space to investigate properly and see if you have a claim to take to court. A caveat lasts 6 months and can be extended for another 6 months for an additional £3 fee.If a probate application is approved the same day you submit a caveat, it will not be stopped. To submit your caveat urgently, make an appointment to visit a probate registry.
You must ensure that the details are correct, otherwise, the caveat will be ineffective. You can still apply for a caveat without a death certificate, however, you must provide as much information as you know about the deceased and as accurately as you can make it. If you do not know the exact date of death, you must amend the caveat as soon as you know it.
What happens after I’ve entered a probate caveat?
The Probate Registry sends you a confirmation note which includes details of the caveat you have entered, including a caveat number. The applicant is informed, and any application for a grant of representation is put on hold one working day after your caveat application is received, for 6 months.If, following your entry, your investigation determines that you do not have a claim against the Executor, you may amend or withdraw the caveat by email (contactprobate@justice.gov.uk if you applied online, or leedsdprenquiries@justice.gov.uk if you applied by mail) or post. Include:
- your 16 digit caveat references
- the full name of the person who has died
- confirmation you want to withdraw the caveat or details of what needs changing
You will need legal advice to decide how to respond to a warning. If you fail to respond within 14 days (including weekends and bank holidays), the applicant can apply to have your caveat removed by the court.
Entering an appearance
You must have a contrary interest to enter an appearance, for example:- You believe the will is invalid and you would be entitled if there was no will or under an earlier or later will
- There’s no will and you think you should be applying for probate, not the person who currently is, under the probate rules
The Registrar will make the caveat permanent if they agree with your reasons, at which point it can only be removed by a District Probate Registrar, High Court Judge or District Judge.
Legal expenses
Bear in mind that if you go to court and lose, you may have to pay the other party's costs. Issuing a summons
You don't have to have a contrary interest to issue a summons. If you are equally entitled to apply for probate or the applying executor is unsuitable, request a summons form from Leeds District Probate Registry (leedsdprenquiries@justice.gov.uk). Complete and return the form with a signed statement of facts, setting out your reasons for issuing a summons.What happens after I’ve entered an appearance or issued summons?
If the court accepts your appearance, it is called an accepted appearance. Your caveat will then remain in force indefinitely until matters are resolved. If your summons for directions is accepted, a hearing will be arranged.If the Executor who applied for the grant has issued a warning against you and you have entered an appearance which is accepted, either of you may now take matters further through the courts. This process can be costly, and you should seek the support of a probate solicitor to help you.
If you've issued a summons, the Registrar will decide who is entitled to apply for probate, or they may suggest an independent administrator handles the estate instead.
Misuse of Probate Caveat
Probate caveat is often used by litigators to push disputing parties together toward an early resolution. Entering a caveat maliciously or without a valid cause may be considered an abuse of process.Need help from a Probate Solicitor?
With the death of a close family member or friend, you may not be feeling up to the task of disputing the grant of probate. If this is the case, then you can employ the services of a solicitor to handle the grant of probate and to administer the estate.Our team of Wills and Probate solicitors are on hand to help handle this for you. We provide a fixed fee for all the work from grant of probate to final distribution. Call our specialists on 0333 344 3234 or email help@samconveyancing.co.uk.
Frequently Asked Questions
Challenge
Written by:
Andrew Boast
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands-on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
Reviewed by:
Caragh Bailey
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
