Probate Registry guidance leading to potential misuse of caveats?

Claims against wills are rising in the UK, not just because of rising death rate linked to the current pandemic, but also due the fact that more and more people are relying on expected inheritance to pay off any debt and/or improve quality of life. It’s when these ‘anticipated inheritances’ don’t happen that people might decide to bring a claim.

With society becoming more and more litigious, more people are prepared to challenge a will. One of the first steps to contesting a will is often to lodge a caveat at a probate registry and block a Grant of Probate being obtained.

The caveat process is a simple matter of paying £20 and filling out a form. It’s easy to do and people often choose to do this even before contacting a specialist lawyer for advice.

As a result, caveats are often used inappropriately with the consequence of estate administrations being delayed and even cost orders against being made against those that lodge them. The Probate Registry has tried to provide guidance online but it appears to have inadvertently encouraged people to lodge a caveat if they just want to see a copy of a will!

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874039/PA8A_1219_save.pdf

The guidance in the form states:

“You may want to stop an application [for probate] when:

 …the person applying for probate refuses to share a copy of the will with you…”

The above clearly suggests that such a situation in itself would warrant and justify an application to stop a grant of representation. Indeed, this only came to our attention after a couple of caveats were lodged against estates and when we asked for justification as to why such steps had been taken, we were met with, “because I want to see the will and the Probate Registry says that a caveat is appropriate until I get to see it!” A will of course only becomes a public document once the Grant of Probate is issued, but this can’t happen until the caveat is removed. When we checked the Probate Registry we discovered the above guidance does in fact exist!

For the avoidance of doubt, it is WRONG to lodge a caveat for the sole reason that the executors refuse to provide a copy of the will. Only the executors appointed in a will are entitled to see the will before probate is granted. If you are not an executor, then you cannot insist on being shown a copy UNLESS you can demonstrate that it is appropriate to disclose such under a Larke -v- Nugus request (so you need to effectively establish (a) reasonable claim prospects and (b) that you have an interest in the estate of the will, particularly if the will is found to be invalid).

Caveats can be removed voluntarily or forcibly through a court order. We are not sure what a judge would do if a Caveator defended a removal application by simply saying they were following the court’s own guidance?

We have written to the Probate Registry, highlighting this issue and suggesting they amend their guidance to make it clear that not being shown a will is not enough as a singular basis for lodging a caveat – watch this space!

IDR Law can assist in advising when to lodge and when not to lodge a caveat and how to get caveats removed. See our caveat service guide on our website at:

https://idrlaw.co.uk/wp-content/uploads/2020/02/idr-law-our-caveat-service.pdf

 

IDR Law is an approachable, boutique firm and the only one in the country dealing solely with inheritance dispute resolution. Whether you’re a law firm, or an individual who feels they would benefit from our expertise, get in touch here, email us at enquiries@idrlaw.co.uk or call on 01423 637050.

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