CONTESTING A WILL – REMOVING A CAVEAT WITHOUT ISSUING COURT PROCEEDINGS
This is the conundrum; you have been left a share of an estate under the terms of a relatives or friends Will, but a disappointed potential beneficiary has entered a Caveat to stop the Grant of Probate and then sat on their hands, hoping you will either give up your claim to the estate or that you will reach out to compromise the dispute. What can you do?
The nuclear-option in Will dispute or Will contest claims
What you might ask is this and why can it be the “nuclear – option”? Well what I mean by this is the issue of your CPR 57 claim to remove the Caveat. In layman’s terms, by this I mean the issue of Court proceedings in the High Court Chancery Division (or other relevant Court) to “force” the removal of the Caveat. I have cut and pasted an extract from CPR 57 (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57) below:
Scope of this Part and definitions
(1) This Part contains rules about –
(a) probate claims;
(b) claims for the rectification of wills;
(c) claims and applications to –
(i) substitute another person for a personal representative; or
(ii) remove a personal representative;
(d) claims under the Inheritance (Provision for Family Dependents) Act 1975(3);
(e) proceedings under the Presumption of Death Act 20131 and
(f) proceedings under the Guardianship (Missing Persons) Act 2017.
(2) In this Part:
(a) ‘probate claim‘ means a claim for –
(i) the grant of probate of the will, or letters of administration of the estate, of a deceased person;
(ii) the revocation of such a grant; or
(iii) a decree pronouncing for or against the validity of an alleged will;
not being a claim which is non-contentious (or common form) probate business;
(Section 128 of the Supreme Court Act 19812defines non-contentious (or common form) probate business.)
(b) ‘relevant office’ means –
(i) in the case of High Court proceedings in a Chancery district registry, that registry;
(ii) in the case of any other High Court proceedings, Chancery Chambers at the Royal Courts of Justice, Strand, London, WC2A 2LL; and
(iii) in the case of County Court proceedings, the office of the County Court hearing centre in question;
(c) ‘testamentary document’ means a will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed;
(d) ‘will’ includes a codicil.
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This is the “nuclear – option” because it can be so expensive and risky – it is almost inevitable costly legal assistance will be required and if you lose, you are likely to be ordered to pay the winners’ legal costs which could range from about £50,000 to over £200,000 (and you may of course have to pay your own legal costs on top unless you had the benefit of a no win no fee contract with your lawyers). It is, by it’s nature, extremely difficult to extricate oneself from a proper Court case, once it has started, although negotiations can continue and
this can be with the Court’s assistance (as it can Order the parties to engage in an ENE or “early neutral evaluation” before a Judge).
The (slightly) less risky options
There are two alternative but (slightly) less risky ways of removing a Caveat. One is by issuing and serving a “Warning” against the Caveat. If no response or “Appearance” is provided, then an application or Summons for Directions can be made to remove the Caveat under r44 of the Contentious Probate Rules (http://www.legislation.gov.uk/uksi/1987/2024/article/44/made)
The other is an application (also under the aforementioned r44) following the entry of an Appearance for a Direction that unless the person entering the Appearance issues a Court claim (see above) by such and such a date, the Caveat is struck out. This is a “put up or shut up” application, but which has the obvious disadvantage that it might simply precipitate the claim in court and thereby fan the flames, rather than extinguish them.
It must be clear then that it is only worth making a “put up or shut up” application if one is very confident about the legal validity of the Will.
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.