Key Takeaways
- If you’re worried about a will, or feel you’ve been left out unfairly, you may want to stop probate before it goes ahead.
- Beneficiaries and other interested parties can sometimes prevent probate being granted.
- Common reasons include concerns over whether the will is valid, whether the person had mental capacity, or whether there was undue pressure, fraud, or executor problems.
- The main way to stop probate is by lodging a caveat at the Probate Registry, which temporarily blocks the process.
- A caveat lasts six months (and can be renewed), giving you time to investigate and raise your concerns.
- If the issueisn’t resolved, the case may go to court, so getting legal advice early is important.
How to Stop Probate
When someone dies, in order to administer their estate and deal with their assets, you would either need to obtain a grant of probate if there is a will or a grant of letters of administration if the person died intestate (without a valid will). This legal document confirms who is the appointed person or persons who have authority to manage a person’s assets following their death and will allow them to sell or transfer these assets as per the deceased’s wishes or by the rules of intestacy.
If you are looking to challenge a will, make a claim against an estate, or you believe that you have a right to be named on a grant but have been ignored, it is often best to start by preventing a grant from being issued in the first place. This will prevent the executor or personal representative from administering assets such as property, shareholdings or other larger assets and therefore if the challenge or claim is successful, those assets remain as part of the estate. This will mean that they can be distributed at a later date as per any court order or agreement reached between the parties to satisfy the claim or challenge that has been made.
Can a Beneficiary Stop Probate?
Yes, a beneficiary can stop probate in certain circumstances. If you are named in a will or entitled under the rules of intestacy, you may have legal grounds to challenge the probate process. Common reasons a beneficiary might want to stop probate include:
- Concerns about the will’s validity – For example, if the will was not signed or witnessed correctly.
- Belief that the deceased lacked mental capacity at the time the will was made.
- Suspicion of undue influence or fraud – Such as pressure from another party in the making of the will.
- Executor issues – If the named executor is unsuitable, unwilling, or failing to act in the estate’s best interests.
To prevent probate being granted, a beneficiary can enter a caveat at the Probate Registry. Caveats are legal notices that can be used by any potential claimant or concerned party to protect their interests in the estate. This stops anyone from obtaining a grant of probate until the issues are resolved. The person applying for the grant will be notified of the caveat, and the legal authority to administer the estate will be temporarily withheld. However, you should seek probate legal advice before taking this step, as stopping probate can delay the administration of the estate and may lead to court proceedings if a resolution is not reached.
Grounds to Stop Probate Being Granted
There are several legal grounds that can stop probate being granted. These include:
- Invalid Will – If the will was not signed, dated or witnessed correctly, it may be considered invalid.
- Lack of Testamentary Capacity – If the person making the will did not have the mental capacity to understand the nature and effect of the document.
- Undue Influence – If the will was made under pressure, coercion, or manipulation by another person.
- Fraud or Forgery – If there is evidence the will has been forged or tampered with.
- Executor Disputes – If the proposed executor is unsuitable, unfit to act, or has a conflict of interest.
If you are considering how to stop probate being granted, entering a caveat is usually the first step. This gives you time to investigate your concerns and gather evidence. Ultimately, the Probate Registry or the court will decide whether the grounds for stopping probate are valid.
Enter a Caveat at The Probate Registry
The way someone can prevent a grant being issued is to file what is called a ‘Caveat’ with the probate registry. A caveat essentially puts a block on any application for a grant of probate or a grant of letters of administration. Until the caveat is removed by the person who placed it (the caveator), a grant cannot be issued by the probate registry. The caveat, once placed, will remain in force for six months, at which point it must be renewed by the caveator, or failing this, it is removed. A fee is payable to the Probate Registry for lodging a caveat, and a further payment is required if you wish to renew it after the initial period of six months.
A caveat is placed by filing an application form called a PA8A. This will confirm the caveator’s details and the details of the deceased’s estate they are registering the caveat against. You do not need a solicitor to register a caveat; however, it is important to seek legal advice before looking to place a caveat, as anyone looking to apply for a grant can challenge the grounds upon which a caveat is placed. Once registered, if anyone applies for the grant, the caveator will be notified, and the applicant will be informed that the caveat is in place. Alternatively, a standing search can be used to monitor the progress of a grant application and notify a potential claimant if a grant is issued. It is then up to the parties to reach an agreement, at which point the caveator may decide that they are prepared to remove the caveat.
If the parties cannot reach an agreement so that the caveat can be removed, then, as mentioned, the applicant is open to challenge the caveat. This is done by what is called ‘Warning Off’ the caveat. A warning document is completed by the applicant setting out their entitlement to apply for the grant, which is then sealed by the probate registry for the applicant to serve on the caveator. The caveator then has 14 days to respond to the warning, and if no response is received, the applicant can submit a statement of service form to the probate registry who will then remove the caveat provided the warning has been served correctly and they are satisfied that the caveator has not responded.
If a caveator receives a warning, then there are options as to what they can do. If the caveator has a ‘contrary interest’, for example, they believe that the deceased’s will is invalid and they’re entitled under an earlier or later will, then they can enter what is called an ‘Appearance’ with the probate registry. This is where the caveator sets out their reasons for wanting the caveat in place, and if the registry are satisfied with the reasons provided, they will make the caveat permanent. At this point, the caveat can only be removed by order of a District Probate Registrar, High Court Judge or District Judge, and any applicant would need to issue court proceedings for the caveat to be removed if the caveator does not agree to remove it themselves.
The caveator can also issue what is called a ‘Summons’. This would be done if the caveator does not have a contrary interest, but, for example, they believe that they are equally entitled to apply for a grant or think the applicant is not a suitable executor for whatever reason. If a Summons is issued, the probate registry will then assess the details and decide who is entitled to apply for a grant. In some circumstances, it may be suggested that an independent administrator be appointed in order to administer the estate. A limited grant may be issued to settle any outstanding liabilities of the estate before full administration can proceed.
Ultimately, the process of stopping someone from obtaining probate is straightforward; however, the consequences of such actions should be thoroughly considered. It is important to be aware that legal costs can arise from disputes over caveats, especially if court proceedings are required.
