Caveat With Caution

July 12, 2016

Dispute Resolution, Wills and Probate

Caveat With Caution

In certain circumstances a person may wish to challenge the validity of a Will. In such cases, a party may enter a caveat which, while in place, will prevent the issue of a grant of probate.

In Elliott v Simmonds and others [2016] EWHC 92 (Civ) (Elliott) the claimant entered a caveat and issued proceedings to test the validity of the deceased’s Will. It is generally agreed that while a caveat is in place, evidence can be gathered, for example by way of disclosure following a Larke v Nugus letter.

A Larke letter may form part of the pre-action protocol in relation to contentious probate matters and requires the testator’s solicitor to give evidence about the circumstances of execution of the will.

In Elliott the claimant did not raise a positive case and instead gave notice under rule 57.7(5)(a) of the Civil Procedure Rules that she required for the Will to be proved in solemn form and wished to exercise her right to cross examine the attesting witnesses.

Rule 57.7(5)(b) provides that the court will not make an order for costs against a challenger unless it considered that there was no reasonable ground or grounds for opposing the Will.

As the claimant in Elliott could not provide any grounds for opposing the Will, the court exercised its discretion that the Claimant should pay the other party’s costs as well as her own. The court held that the Claimant should only pay costs from the point at which she and her advisers had sufficient information on which to form a view on whether there was a reasonable ground on which to challenge the Will.

Elliott provides a reminder that challenging a Will and entering a caveat where there are no reasonable grounds to do so may lead to an expensive costs order.  Entering a caveat is a reasonable first step while enquiries are made, but once (if) it becomes clear that there are no reasonable grounds on which to challenge a Will, the caveator should consider lifting the caveat to prevent a costs order being made against them.

If you have concerns or you think someone is seeking to challenge the validity of a Will please do not hesitate to contact a member of our Private Client department.

posted by Kate Garrow | July 12 2016