There is a Caveat

“So I Can’t Get A Grant And I Can’t Administer The Estate”

We increasingly hear from private client practitioners that they cannot obtain a grant of probation because a caveat has been registered, which prevents the Grant from being issued. Often, practitioners don’t even know that a Caveat has been registered until they make an application for a Grant of Representation and find that the application is “stopped” by the Probate Registry. We are often asked to help when this happens.

It is increasingly common to find that Estate Administration is delayed by a Caveat – over 10,000 caveats a year are registered – sometimes it appears to us that Caveats are mischievously registered deliberately to cause havoc in the Administration of an Estate and to try to strengthen the negotiation position of a disappointed beneficiary.

Doing Nothing?

In our view, taking the easy option and doing nothing is inappropriate. Estates are to be administered. Any practitioner who leaves an estate in a state of inertia is potentially risking a claim.

It is all well and good to say that it doesn’t matter if an Estate property is not sold – because property prices typically increase year on year. ANY real property is at risk from flooding or vandalism. We have seen many cases where insurers refuse to pay out when this happens because inspection conditions have not been fulfilled. Company shares can increase or decrease in value equally. Premium Bonds held by a deceased cease to be eligible for prizes after 12 months from death. Seemingly sound financial investments can turn to dust if a company becomes insolvent.

So, What Can Be Done?

There are two primary avenues that can be taken to secure the Administration of the Estate.

Attack The Caveat

It is relatively easy to serve a Warning to a Caveat – to enter an Appearance or to have the Caveat dismissed. It is equally easy for a Caveator to serve an Appearance, making the Caveat permanent. Many practitioners leave things there – on the basis that there is nothing more that they can do without actually starting court proceedings – which is always a last resort and invariably involves the worry, risk, and expense of court proceedings.

If a Caveator simply registers the Caveat and then takes no substantive action to make progress, we have found that the Probate Registry is becoming increasingly amenable to making Orders to get the Caveat dismissed – in the form of a “Put Up or Shut Up” type Order – this is where the Probate Registry will make an Order to say something like – if the Caveator does not start probate validity proceedings within 28 days then the Caveat will be dismissed. Obviously, it would be inappropriate to go straight from the service of an Appearance to a Put Up or Shut Up type application. Careful steps need to be taken to set up the Caveator to make progress – for example to start legal proceedings to challenge the validity of the Will. A Put Up or Shut Up order will often allow the Personal Representative to obtain a “full” Grant of Probate.

A Grant Ad Colligenda Bona

The second route is to make an application for a Grant ad Colligenda Bona. This Grant is often known as a “Limited Grant” or a “Collection Grant”. It allows a Personal Representative to obtain a Grant to call in and collect the assets of the Estate, pay debts – but not distribute the Estate. Such a Grant need not be obtained by a Personal Representative – it could, for example, be obtained by an independent professional. Notice should be given to the Caveator before such an application is made – and if it isn’t, it could lead to a Grant ad Colligenda Bona being set aside. At first sight, an application for a Grant ad Colligenda Bona can be daunting – but at IDR, we are surprised that this process is not used much more frequently than it is. Care needs to be taken with regard to the wording of the Grant – for example, whether it is a general application covering all of the assets of the Estate or whether it is limited to the sale of particular properties or the like.

Guest blogger: Stephen Lawson

Stephen is a specialist Contentious Probate Solicitor with an extensive history. He has dealt with all aspects of Contentious Will Trusts & Probate cases, acting for both Claimants and Defendant clients. He is a partner at IDR Law and the current chair of the Law Society Wills Society Wills and Equity Committee. Stephen is also a legal author, having written for numerous publications, including The Times, Law Society Gazette, Family Law Journal, APIL PI Focus, STEP TQR, ACTAPS and numerous other journals.

To watch Stephen discuss this topic with Ian Bond, the former Chair of the Law Society Wills and Equity Committee, please click here.