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A barrister's wig

HOW TO CONTEST A WILL – DEFENDING A SPURIOUS CLAIM (HOW TO CHEAPLY REMOVE A CAVEAT)

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WHAT HAPPENS IF SOMEONE MAKES A COMPLETELY UNMERITORIOUS CLAIM AGAINST THE LEGAL VALIDITY OF A WILL
If such a claim is made (that a Will is invalid) and either no grounds to support such a claim are provided or those that are have no foundation in law or are entirely without merit, then typically a Caveat might have been entered to prevent the lawful administration of the estate whilst the claim is concluded. We have come across a wide range of such claims where it appears impossible to remove the Caveat without recourse to expensive court proceedings in the High Court.

One has to say that it is always possible to apply for an interim Grant so that the estate is administered but not actually distributed which is sometimes necessary to “protect” vulnerable estate assets (such as a house) which might otherwise considerably deteriorate over time.

WHAT SORT OF CLAIMS ARE MADE WHICH APPEAR TO HAVE NO MERIT
It is often assumed by disappointed beneficiaries that just because they are “family” or “blood relatives” they have an automatic right to inherit. This is not the case for English and Welsh estates as in this jurisdiction, there is almost complete testamentary freedom, jealously guarded by the Courts in England and Wales.
Another related claim is that the Will is unfair because (for instance) children of the deceased didn’t receive equal shares. Again, freedom of testamentary disposition means this is no a ground which can found a claim in law.

Finally, it might simply be a claim (for instance) that the Will is invalid because the Testator (the legal term of the person who actually makes the Will) didn’t have legal testamentary capacity, but where the deceased’s medical records reveal no such issue or the Solicitors involved in the formation of the Will took steps to have the deceased assessed for his capacity, prior to the Will being completed, a test which he or she passed.

IF THE CAVEAT IS IN PLACE THE ADMINISTRATION OF THE ESTATE IS PLACED ON HOLD
The existence of a Caveat stops the legal distribution of the estate and therefore holds up its lawful administration. It is an extremely powerful device and its use can be abused in Will dispute, Will contest cases and in Will Claims in general. In fact, we receive requests to use the Caveat in this way notwithstanding there is little or no evidence to sustain such a claim, several times a month.
Surprisingly then, it is much rarer to receive a request for assistance to actually remove a Caveat where there is no justifiable claim. There are though little used devices which can be deployed to remove them reasonably “cheaply” and without the need for full-blown legal proceedings (commonly called CPR 57 claims) in the High Court Chancery Division. Those can cost tens of thousands of pounds.

Firstly (and this is in fact well-known), the Caveat can be “warned”, which is a process wherebys the person who entered the Caveat (called the “Caveator”) is asked to confirm very briefly the nature of their complaint against the legal validity of the Will. If the Caveator doesn’t enter an “Appearance” explaining in very brief terms, the nature of their complaint, then a sort application can be made to the Probate Registry for the Caveat to be removed.

If the Appearance is entered, then as will quickly be seen, only the very briefest details of the nature of the Will dispute contest are required and no evidence (eg. that the testator lacked legal testamentary capacity and didn’t know and approve the contents of his/her Will). The Caveat then becomes permanent which means in practice that the Caveator doesn’t then have to renew it every six months and pay the fee to do so (which is currently £20).

Once permanent, it can still be removed with agreement and without an expensive High Court Chancery Division claim. However, even absent agreement, if the Caveator still takes no steps to progress his or her claim and thereby appears to be relying on the delay in the estate administration caused by entry of the Caveat to bring about an agreement, it is still possible to force him to “put up or shut up”. A Summons for Directions can be issued in the Probate Registry to obtain an Order that unless he or she issues a High Court Chancery Division claim by such and such a date, the Caveat is struck out.

As I say, this is particularly effective is disposing of the most unmeritorious claims in Will dispute/will contest cases. It is not a good idea where the claim has some chance of succeeding!!
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.

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