A vital early step if you want to challenge a Will … a caveat!
If you want to challenge a Will and don’t consider filing a ‘caveat’, you’re missing out on a valuable protection, which will stop the executors from bulldozing on with the Will despite your challenge.
Filing a caveat (with the relevant fee) with the Probate Office or a District Registry stops it from issuing a Grant of Probate – the formal document that proves the executors named in a Will are the people entitled to sort out the deceased’s estate – for six months (which you may be able to extend if that’s not long enough). If there’s a dispute over the Will, this is a very effective way of forcing the executors to acknowledge your grievance and enter into discussions with you about it.
It also give you time to investigate further – to gather information to help you decide whether you really do have a legal claim, and if so, how strong it is.
Caveats can be used, for example, where you’re disputing whether:
- The Will is valid.
- The Will-maker signed it properly.
- They had legal capacity (for example, they were too injured or ill) to make their Will.
- They genuinely knew or approved what was in their Will.
- They were unduly influenced by someone else when they made their Will.
You can also apply for a caveat if the deceased did not leave a Will, and you want to stop the Probate Office or District Registry issuing ‘Letters of Administration’ – a document that does the same job as a Grant of Probate, but which is issued where there is no Will.
You can stop a probate application made by someone else (“enter a Caveat”). Please note that the Probate Office cannot advise you as to whether lodging a Caveat is the appropriate course of action for you. If you have concerns about an estate you can seek independent legal advice.
There are a number of things that can go wrong if you try to file a caveat. For example, your caveat may be invalid if you aren’t entitled to file it or you file it improperly. It may be contested, so you have to justify it (and if you can’t justify it you can become liable to compensate the ‘other side’ for their legal costs). And there are rules about what you have to include in it. So, although you can draft and file one yourself, it’s usually best for a solicitor to do it for you.
In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.