Disputing the Validity of a Will: Can an interested party prevent the extraction of the Grant of Probate, and How Caveats can Assist?

Contentious probate claims are on the rise and there are increasing numbers of people challenging the validity of a Will. Clients are often unsure how to prevent the extraction of the Grant of Probate, especially in instances where there are concerns about the testamentary capacity of a testator or testatrix.   

Caveats are becoming increasingly commonplace and have been on the rise in recent years particularly due to (i) their easy and inexpensive accessibility; (ii) the ever-increasing values of estates; (iii) flawed wills and (iv) increasing and varied family dynamics and estrangements.  

In 2023 there were more than 10,000 applications, which represented a 14% increase on the number of applications made in 2022. 

There were 3,061 caveat applications in the final quarter of 2024 which was the first time where there had been 3,000 applications in a single quarter. 

Perhaps more significantly, data obtained under the Freedom of Information Act from HM Courts and Tribunals Service showed that there were 11,362 applications in 2024. 

The above statistics reflect the general broader increase in probate disputes generally (and also reflect the increased instructions I have received in the last circa 12 months) – so why the significance? 

What is a caveat, and why enter a caveat? 

By way of a summary, a caveat is a written notice given by a caveator to show that a grant should not be issued in a deceased’s estate without their prior notice. 

A caveator would need to comply with Rule 44 of the Non-Contentious Probate Rules 1987 (SI 1987/2024) (“NCPR 1987”) and can elect to lodge the caveat online or via post. 

Typically, a caveat may be entered in circumstances where either: 

1. the validity of the deceased’s will is disputed (i.e. there may be concerns regarding the deceased’s capacity, concerns regarding the drafting and execution of the will generally or concerns regarding potential undue influence); 

2. there is a belief that the deceased executed a will and did not die intestate; 

3. the caveator objects to the grant being issued to the personal representative as they may be concerned about their ability to administer the deceased’s estate and/or comply with their fiduciary duties generally; 

4. the caveator may be seeking to instigate citation proceedings (advancing / intervening in the administration of the estate – i.e. to accept or refuse a grant, to take probate or to propound a will); and 

5. the caveator may intend to pursue a probate claim (albeit it would inappropriate to enter a caveat in circumstances where the party in question is looking to institute a claim in accordance with the Inheritance (Provision for Family and Dependants) Act 1975). 

Who can enter a caveat and how does it operate? 

It will no doubt be self-evident to you that a prospective caveator must be an adult and either has an interest in the estate or an interest in the estate that is materially different to that of the person whom is applying for the grant.  

The caveat essentially operates as an “alert” and notifies all Probate Registries non to issue a grant for a valid will until such time that the caveat has been removed. 

The caveat has effect for 6 months from the date of entry and can be renewed every 6 months until such time that is has been removed. Again, it is self-evident and prudent to take a record of when the caveat has been entered, when it expires and when it ought to be extended (if applicable). 

If the prospective caveator wishes to extend the caveat, then s/he will need to make an application for renewal during the last month of the 6-month period it is in force. Please be advised that the renewal cannot be effected online or via email, and it is very important to consider any relevant time limits. 

The caveat will cease to have effect in the following instances: 

1. the caveator elects to withdraw it; 

2. a probate claim is instituted in the High Court; 

3. the caveator has not entered an appearance to a warning (the process of which will be elaborated below); and/or 

4. the caveat was issued to begin citation proceedings and either (i) the caveator has withdrawn it; (ii) the citation proceedings have since concluded or (iii) the Registrar or a District Judge has ordered its removal. 

How do you respond to a Caveat? 

If a party disagrees with the caveat, then s/he may challenge the same and may issue a warning. 

The warning is to be specified in a prescribed form, namely Form 4 which is set out in Schedule 1 of the NCPR 1987. 

In such circumstances the party will need to: 

1. set out their interest in the deceased’s estate; and 

2. give notice to the caveator that they have 14 days to either respond to the warning and enter an appearance or issue and serve a summons for directions. 

Typically, the warning is issued by Leeds District Probate Registry and service will be effected upon the caveator via post. 

What can a caveator do in circumstances where s/he has been challenged by a warning? 

A caveator has numerous options in such circumstances, namely: 

1. s/he could elect not to act at all. The person who entered the warning can after 14 days either file an affidavit or a witness statement verified with a statement of truth to the effect to the effect that they had issued the warning but received no summons for directions, and in turn invite Leeds District Probate Registry to withdraw the caveat;   

2. s/he could elect to withdraw the caveat if appropriate. In such circumstances, the caveator would need to write to Leeds District Probate Registry (be it by filing form PA8A or notifying via email) and in turn notify the party whom has issued the warning; 

3. s/he could issue and serve a summons for directions. In this instance, the caveator will need to issue within 14 days with the costs position governed by Rule 60 of the NCPR 1987 (i.e. that CPR 43, 44, 47 and 48 will be applicable); or 

4. s/he could enter an “appearance”. If a caveator decides to enter an appearance, then s/he must use the prescribed Form 5, which again can be found in Schedule 1 of the NCPR 1987. Within the document, the caveator will need to set out the nature of their interest that conflicts with the interest of the person who has issued the warning. Again, the form will need to be lodged with Leeds District Probate Registry within 14 days. The effect of the appearance is that the grant will not be issued (save to the caveator) unless the Registrar or a District Judge orders it. 

If you have any additional queries and/or require any legal assistance in respect of a prospective or ongoing contentious probate matter then please do not hesitate to contact Billy Smith on 0203 974 8905 / b.smith@rfblegal.co.uk or the firm generally on 020 7613 1402 / info@rfblegal.co.uk