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Contentious probate Q&A Question 3
  • 23rd Jul 2021
  • Article written by Emma Salmon
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Question

“I have submitted an application for a Grant of Probate in my mum’s estate but have been informed that a caveat has been put in place by my older brother which prevents a Grant of Probate being issued. My brother is saying that my mum’s Will is not valid because it gives him a lesser share than me. How do I get the caveat removed?”

 

 

Answer

 

When a Caveat is lodged at the Probate Registry it is put in place for a period of 6 months. It will prevent the Grant being issued and can be renewed an unlimited amount of times by your brother until further steps are taken by you.

 

If your brother is asserting that there is a claim as to the validity of your late mother’s Will, it is for him, as potential claimant, to prove his claim. He should provide you with details of why he perceives the Will to not to be valid along with all of his evidence in support. You have not mentioned why he perceives the Will to be invalid however if there are any allegations of, as an example, lack of capacity or duress, there will need to be evidence of this.

 

You should invite your brother to set out his position and provide him with a reasonable period of time to do so. If he does this, you can consider his arguments and what next steps you wish to take. We would suggest taking legal advice on the merits of the claim and next steps. This is very much case-dependant so without the details of the claim or sight of the evidence we could not comment further on this at this stage.

 

If he does not set out his position, the next step would be to consider ‘Warning’ the Caveat. It would be sensible to have the benefit of legal advice before taking this step as if resisted by your brother it can result in the Caveat becoming permanent. At that point the Caveat would only be able to be removed by Order of the Court or agreement between you and your brother and can have cost consequences.

 

If you would like for us to go through your case in more depth and advise you on the merits of the same, then please contact our Contentious Probate, Trusts and Estates Team on 01622 698 000 or or get in touch with us at the bottom of the page.