Submitting an appearance to defend a caveat in probate proceedings

Last updated: September 2022 | 3 min read

Because the law is established, there is a lot of legal terminology around wills and probate. The process for challenging a will is no different.

If you want to contest a will or a nominated executor’s suitability to administer the estate, then the first step in preventing a grant of probate is to enter a caveat. This gives you time to investigate and gather evidence to support your claim.

The caveat can be challenged who can submit a warning – a court form that forces you to respond formally with eight days (including the day you were served) with an affidavit called an appearance.

This is a short deadline for action. If you fail to respond within the eight day time period, then the party who submitted the warning can ask the Probate Registry to remove the caveat and allow the application for a grant of probate to continue.

Your appearance should be submitted using Form 5 and delivered to the Probate Registry. You can either deliver it in person or send it by post. If you choose to post it, we recommend doing so by registered or tracked post. No fee is payable.

It should state the reasons why you entered the caveat – why you believe that the will is not legally binding or why the nominated executor is not fit to hold the position.

You should also send a copy of the appearance to the person seeking the grant of probate at the same time.

The caveat stays in place (becomes permanent) unless either the court makes a judgment to remove it at the end of contentious probate proceedings, or if both the caveator and the nominated executors reach agreement out of court.

You should be careful when responding to a warning with appearance. If there are no reasonable grounds to proceed then a court may award the other side’s legal fees to be paid by you.

The most common grounds given that are not reasonable are that the caveator finds the wishes in the will unfair (i.e. that the distribution of the estate should be different) and that the caveat is a time delaying tool in order to investigate whether someone else might be able claim under the Inheritance Act (i.e. that someone else was a dependent or had a right to the estate).

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