Can Probate Be Refused?

Probate can be a long and arduous process. It’s common for there to be issues that might have you questioning whether probate will be granted.

Generally speaking, while delays are common, your application for probate won’t be refused unless the application is invalid in some way. 

That said, it’s possible for probate to be delayed or contested if a caveat has been entered at the probate registry.

It’s possible to ‘enter a caveat’, or in other words, challenge a probate application if there is an ongoing dispute regarding the deceased’s estate. Disputes might involve:

• The validity of a Will.
• Objections to whether a particular individual can administer the estate properly.
• It is believed that there is a Will, but it’s yet to be found.

A caveat, then, is a written notice to show that a Grant of Probate shouldn’t be granted without the caveator being notified.

The caveat lasts initially for six months and prevents all applications for probate on the estate being granted during that time for a small fee. The caveat can also be extended for a further 6 months for an extra fee, and renewed indefinitely thereafter.

As entering a caveat can result in legal action as well as legal costs, you should consider trying to reach an agreement with the person applying for probate before entering a caveat.

How To Enter A Caveat

If you have concerns about a Will, a caveat is a step you can take to prevent the executor from administering the estate.

Making the decision to enter a caveat should not be taken lightly and you should seek legal advice from a probate solicitor about the potential implications before making a decision. 

A caveat should only be utilised if there is a strong argument to be made against the Will and a genuine wish to prevent an executor or administrator from obtaining a Grant from the Probate Registry. It’s not enough to simply disagree with the terms of a Will.

In circumstances where a dispute can’t be resolved, a caveat might feel like the only option. 

To enter a caveat, the individual must be a minimum of 18 years of age. You can enter a caveat yourself or through a legal professional such as a probate solicitor.

If applying yourself, you can: 

• Apply online or by post.
• Make an appointment to visit a probate registry.

Warning Off A Caveat 

Once a caveat is put in place, the estate cannot be administered until it has been removed.

As such, the individual with an interest in the estate, such as the executor, is entitled to serve the caveator with a Warning.

There are various steps that need to be taken in order to give a Warning, from requesting a form to stating your ‘interest’ in the estate.

You will also need to keep a record of how and when the Warning was given, whether this was by post or by hand. It’s worth noting that ‘you cannot give a Warning by email’.

After the Warning has been served, the caveator has the following options:

1. Withdraw the caveat
2. Entry of an appearance 
3. Issue and serve a summons for directions 
4. Give no response to the Warning

1. Withdraw The Caveat

The first option the caveator will have is to withdraw the caveat.

A caveat can be withdrawn at any time before the deadline for entering an appearance elapses.

Once the caveat has been withdrawn, an application for a grant can be made by the person entitled to apply.

2. Entry Of An Appearance 

The caveator has 14 days from when the Warning has been issued to enter an appearance, which is a written response in a prescribed form submitted to a probate registry. 

Once an appearance has been entered, the caveat will remain in effect until a District Probate Judge or Registrar directs it should be removed.

This almost always happens as a result of the resolution of the dispute. 

3. Issue And Serve A Summons For Directions 

This is required within the 14-day time frame and can be done by an individual who has no contrary interest to the individual who issued the Warning notice but may consider the choice of executor unsuitable when it comes to administering the estate. 

The summons for directions will be determined by a Registrar or District Judge, who may or may not remove the caveat.

4. Give No Response To The Warning

Once 14 days allowed for a response have passed, then the individual who issued the Warning can file an affidavit to show that the Warning was issued to the caveator.

Once the affidavit is filed, the caveat will cease to have effect, and the application for a Grant of Probate can be made before the estate is administered. 

How We Can Help 

At Harding Evans, we recognise how difficult the probate process can be and our Wills and probate solicitors are on hand to help.

Dealing with all issues relating to Wills, trusts, tax, probate, Lasting Powers of Attorney and Court of Protection, our team will work closely with you to ensure you and your family’s wishes are followed.

Get in touch with our professional team of solicitors today to find out how we can help you.