3 March 2021 | Comment | Article by Oliver Black
Often in disputes involving contesting the validity of a will, or in a claim under the Inheritance (Provision for Family and Dependants) Act 1975, potential claimants or defendants can be keen to ensure that their interests are protected as early as possible. This blog will discuss the various ways by which this can be achieved up to and including the issue of proceedings, although there is never a one size fits all approach to cases involving estate disputes.
1. Entering a caveat
A caveat is a legal notification to the Probate Registry to insist that no grant of probate (or letters of administration) be issued in an estate. It essentially stops probate from happening. This is often recommended in disputes where one party has concerns over the validity of a will, or where there are concerns over whether an executor or personal representative is fit to take on that role and administer the estate. The effect of a caveat is that it prevents the Probate Registry from issuing a grant of probate or grant of letters of administration (documents that authorise the personal representatives to administer and distribute the estate) until that caveat has been removed. Although anyone can enter a caveat in an estate, caveats should only be entered by those who have an interest in the estate, either under a current or previous will, or under intestacy.
Caveats are very easy to enter online and cost £3. They last for six months and are capable of being renewed thereafter. If a personal representative or beneficiary of an estate feels that a caveat has been entered inappropriately, he can enter a “warning” to the caveat at the Probate Registry. This is a notice to the caveator to show cause as to why a grant of probate should not be issued in the estate. The word caveator refers to any person who submits a caveat at the Probate Registry. The caveator can then enter an “appearance” to the warning, which will cause the caveat to become permanent and only liable to be removed with the agreement of the caveator, or by an order of the high court.
Although a caveat is easily entered, it does not mean that it is suitable in every case. A caveat is not to be used as a tool to seek to secure an interest in an estate, so should not be used by those who claim a debt against the estate, nor should they be used in claims under the Inheritance Act. In Inheritance Act claims, a “standing search” is far more useful.
2. Obtaining a standing search
A standing search allows the applicant to be informed when a grant of probate is issued in an estate. This is more suitable in Inheritance Act claims as, ultimately, an estate may not be able to be distributed to a potential claimant until a grant has been issued. Standing searches can be entered by completing a short form and sending it to the Probate Registry. They also remain active for a period of six months.
A citation is a method of forcing the commencement of the probate process. Although not necessarily for use in a will dispute per se, a citation is still a useful tool in certain circumstances. They are three types of circumstances in which a citation may be suitable:
- A citation to accept or refuse a grant: This is used where an executor appointed by a will, or a personal representative with priority to take a grant on intestacy, refuses to do so or simply has no interest in doing so. This can leave beneficiaries of an estate in limbo, as the estate may not be distributed to them until a grant has been issued.
- A citation to take probate: This is used where a personal representative has undertaken some steps in the administration of the estate, known as “intermeddling”. This can make the situation more complex as, generally, once a personal representative has intermeddled, they cannot then give up their position. A citation to take probate can put a personal representative under pressure to make their role formal by obtaining a grant in the estate. If the personal representative does not take a grant, then the beneficiary who has issued the citation could ask the court to order that the personal representative take a grant, or request that an alternative personal representative be appointed to take the grant.
- A citation to propound a will: This is used to force the executors of a will, which may not be the deceased’s last will, to propound that will. If the executors fail to do so, a different will could subsequently be propounded.
4. Ask yourself, what if I (or my client) died?
This is very often overlooked by both the potential parties to a will dispute, as well as their legal representatives. The death of a party to a will dispute (particularly a claimant) will carry significant consequences for a potential claim, not least due to the fact that in certain circumstances, such as in claims under the Inheritance (Provision for Family and Dependants) Act 1975, the claim dies with the claimant. Careful consideration will therefore need to be given at the outset of a claim as to whether a claimant is likely to survive long enough either to reach a settlement or trial.
With probate disputes, the considerations are slightly different, as claims do not die with the claimant as in claims under the Inheritance (Provision for Family and Dependants) Act 1975. Here, after the death of a claimant, the claim will vest in the personal representatives of the deceased claimant. Consideration should therefore be given to who the personal representatives of the claimant’s estate are, as this may affect the claim. For example, if a grandson were to make a will validity claim against his grandfather’s estate, and the executor (and defendant to the probate claim) of the grandfather’s estate was the claimant’s father, the claim would likely then vest in the deceased claimant’s father if the claimant were to die without leaving a will, as, under the intestacy rules, the claimant’s father would have precedence to take out a grant.
Once identified, situations such as that set out above can of course be avoided by encouraging the claimant to make a will that benefits those who would be willing to carry forward the will validity challenge.
Will challenges and claims over estates are never straight forward and require careful consideration from an early stage in order to ensure that the interests of various parties are protected.
For advice on contesting a will, contact our Court of Protection Disputes team on 029 22 675 500.