What is a caveat?Smart Will
Wills – What is a caveat?
A caveat is a legal device used to give notice that there is a concern about the validity of a Will.
The effect is simple – it stops any executor from obtaining a grant of probate and thus stops distribution of the estate.
Placing a caveat is simple and theoretically is very cheap with only a £20 fee but the consequences can be far-reaching and very expensive as we will see in this article.
How do you enter a caveat?
The act of requesting a caveat is relatively simple in itself in that it is just a matter of completing form PA8A: Caveat application and paying the fee to any probate registry, however, given the effect of this can be quite dramatic we’d always suggest that you speak with a professional before going down this route.
Once a caveat has been entered it stays active for 6 months (although this can be extended) and it stops any further progress being made.
The idea is that this will allow all of the interested parties to examine the Will and the issues around it and then ideally agree as to the validity of the document.
It is important to note that a caveat isn’t used to challenge the distribution of an estate, merely the validity of the Will itself.
The caveat can be lifted in three ways; The person submitting it (the Caveator) can withdraw it themselves, a court could order that it is removed or it could just lapse though time.
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Why caveats can be a dangerous road to go down
It may seem like a simple solution if you are unhappy with the status of a Will or think that the distribution of the estate will be unfair, but using a caveat as a method of righting wrongs may not be a wise move.
If the reasons for submitting a caveat are deemed to be spurious or simply unreasonable then the probate applicant (usually the executor) can issue a warning (also known as warning off) which has the effect of challenging the caveat.
The caveator must then ‘enter an appearance’ to ensure that the caveat remains in force. This will have the effect of making the caveat permanent meaning that it can only be lifted by a court.
In the case of Elliott v Simmonds , this is exactly the route taken by Ms Simmonds as a method of challenging the Will of her deceased father.
However, after lengthy legal proceedings, during which the estate essentially sat in a state of ‘limbo’, the court found that the caveat was without merit and the executor of the estate applied for costs.
These were awarded against Ms Simmonds to the tune of £100,000 which, added to her own legal bills would have added up to a considerable amount of money to spend on what amounted to simply making a point.
Quite apart from the financial risk that someone is taking by seeking to use a caveat to challenge a Will, there are of course the emotional aspects around going through a lengthy legal battle with members of a family.