How do estate executors remove a caveat from probate?

If you are an executor dealing with a caveat, you may be unsure what it means for probate and how to move the estate forward. This article explains what a caveat is, how it can affect your role, and the steps you may be able to take to remove it.

A caveat can be removed if the person who entered it agrees to withdraw it and notifies the Probate Registry in writing. However, if the caveat was entered because they intend to bring a claim against the estate, they may refuse to remove it until the contested probate or inheritance dispute has been resolved.

An executor can also apply to remove a caveat by issuing a formal warning through the Probate Registry. This is known as “warning off” a caveat. Executors should take advice from a contentious probate solicitor or lawyer before doing this to protect their position and ensure the correct procedure is followed.

What is a caveat?

A caveat is a formal written notice lodged at the Probate Registry. It stops a grant of probate from being issued, which means executors may not be able to deal with the deceased person’s assets. For example, they may be unable to sell a property, close accounts or collect money owed to the estate until the caveat is removed.

When should a caveat be entered?

There are only certain situations where it is appropriate to enter a caveat to prevent a grant of probate. If those circumstances do not apply, the caveat should usually be removed. A person should consider entering the caveat if they:

• have concerns about the validity of the deceased’s Will
• object to a grant being issued to a particular person, for example because they are concerned about that person’s ability to administer the estate properly
• intend to start a probate claim or citation proceedings.

A caveat should not usually be entered simply because someone wants to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

How is a caveat warned off?

Under rule 44(5) of the Non-Contentious Probate Rules 1987, anyone who claims to have an interest in the estate may issue a warning. This can include an executor of the estate.

Once the warning has been served, the person who entered the caveat (caveator) can:

• enter an appearance (this means filing a formal written response at the Probate Registry to defend a caveat after someone issues a warning against it), which may keep the caveat in place
• withdraw the caveat
• issue and serve a summons for directions
• take no action.

If the caveator enters an appearance, they must explain to the Probate Registry why they think they have an interest in the estate that is contrary to the person warning off the caveat and why the caveat should remain in place. The Probate Registry may reject the appearance if there is no valid reason for the caveat to continue.

What happens if the caveator does not respond?

If the caveator does not respond within 14 days of being served with the warning, the person who issued the warning can file evidence with the Probate Registry confirming that it was served and that no response was received. The Probate Registry may then remove the caveat.

How long will a caveat last if no action is taken?  

A caveat lasts for six months from the date it is entered. It can then be renewed every six months, unless it is removed.

However, a caveat should not be maintained indefinitely. If no inheritance or probate claim is started within a reasonable period, the estate executor may be able to take court action against the person maintaining the caveat.

This risk was highlighted in Elliott v Simmonds [2016] EWHC 732 (Ch). Ms Simmonds entered a caveat after raising concerns about the Will, but then took no steps to bring a claim or remove it. Years later, the executors had to ask the court to prove the Will. The court said Ms Simmonds had enough information to decide whether to bring a claim and had effectively caused the proceedings by doing nothing. She was ordered to pay some of the costs of the application.

Advice to executors before issuing a warning

1. A warning should not be issued automatically. If the caveator enters an appearance, this can make the dispute more complicated and may prevent a grant from being issued unless the matter is resolved or the court orders otherwise. This can cause delays and increase costs.
2. Executors should consider the cost risks before warning off a They should remain neutral and protect the estate until the dispute is resolved. If they take sides, they may be personally liable for costs, so should consider seeking an indemnity from the beneficiaries or court approval before acting.
3. The warning, and any statement confirming that no response has been received, must be prepared, filed and/or served correctly. If the correct procedure is not followed, the warning may be ineffective, and this could cause further delay and/or additional costs.

If you are an executor, you should therefore get legal advice from a specialist contentious probate solicitor before seeking to warn off a caveat. Getting early advice can help you understand your options, avoid unnecessary delay and protect your position.

Evelyn Hebbron is a senior associate solicitor at Debenhams Ottaway who specialises in contentious probate, including advising executors on caveats, warnings and inheritance disputes. Please contact Evelyn if you need advice on removing or responding to a caveat.