Challenging or Issuing a Warning Against a Caveat  

What is a Caveat? 

A Caveat is a notice entered against a deceased person’s estate which places a stop on a grant of representation being issued by the Probate Registry whilst the Caveat remains in place. 

Under Rule 44 of the Non-Contentious Probate Rules 1987 (“NCPR”) [The Non-Contentious Probate Rules 1987 (legislation.gov.uk)] any person who wishes to show just cause against the sealing of a grant of probate may enter a Caveat. 

A Caveat can be entered against a deceased person’s estate if, for example, there is a dispute as to who is entitled to apply for probate, whether a will exists or whether the will is valid. It is not appropriate to enter a Caveat if the only claim being considered in respect of the deceased’s estate is pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. A party may face adverse cost consequences if they improperly maintain a Caveat without just cause. 

A Caveat remains effective for six months from the date on which it is entered. However, an application can be made during the last month of the subsistence of the Caveat to extend it by a further 6 months. 

How can a Caveat be challenged? 

In circumstances where a prima facie dispute exists, a caveator ought to be afforded reasonable time to conduct investigations and enquiries in respect thereof, as is one of the purposes of the Caveat process. So what happens if matters cannot be disposed of and the Caveat is withdrawn by agreement, and another person who has an interest in the deceased’s estate considers that the caveator has had sufficient time to investigate their claims and/or wants to challenge a Caveat to enable probate to proceed? 

In accordance with Rule 44(5) of the NCPR any person claiming to have an interest in the deceased’s estate may file a Warning with the Probate Registry for sealing and serve the same on the caveator requiring them to give particulars of any contrary interest in the estate. 

The Warning must give the caveator notice that they have 14 days from the date the service was filed?/was made? thereof to:- 

1. Enter an Appearance setting out their contrary interest to that of the warning party; or,
2. Issue and serve a summons for directions if they have no contrary interest to the warning party but wish to show cause against the sealing of a grant to that person. 

If an Appearance to a Warning is entered the Caveat will remain in place until the commencement of a probate action or its discontinuance by consent. 

What if the caveator does not respond to the warning? 

If the caveator does not respond to the Warning within the permitted period the warning party can file a witness statement as to service of the Warning with the Probate Registry. If satisfied as to service of the Warning on the caveator the Probate Registry will remove the Caveat enabling any probate application to proceed. 

Careful consideration ought to be given as to whether or not to enter and maintain a Caveat or serve a Warning at a particular stage as a party held to have behaved unreasonably can be subject to an adverse costs order if, for example, they have prematurely served a Warning without affording the caveator reasonable time to carry out investigations or maintain a Caveat once it becomes clear that there are no grounds for challenging the will and that the caveator’s claim is bound to fail.