How to stop probate being granted whilst you investigate your dispute
Caveat or Grant ad colligenda bona or an injunction?
If you think you may have a probate claim against a deceased’s estate, the next steps to allow you to investigate the dispute and consequently bring your claim against the estate are vital.
The specific steps which you should take depend upon the circumstances of each case and you must consider matters such as whether there is a grant of probate, whether the estate has been distributed and or administered and the character and any personal interest of the personal representatives in the estate.
If a claim is discovered at an early stage before the personal representatives have applied for probate, a caveat can be entered on the District Probate Register. It is a written notice to the Probate Registry, which ensures that a grant of probate or letters of administration are not issued to the personal representatives of the estate without a warning being served on the potential claimant, who would then be known as the “caveator”. In practice this generally protects the potential claimant’s position whilst he or she investigates the claim against the estate.
In practice, the personal representatives tend to undertake or agree not to apply for a grant of probate until the claim has been investigated. However should the estate decide to proceed with an application for a grant of probate in any event, the caveator will receive the warning that this is occurring and has only 8 days from the time of receiving the warning in which to take legal action. A hearing will take place before the District Registrar who will decide whether the estate can take out a grant of probate.
A caveat will last for 6 months, following which it must be renewed, this gives the potential claimant some time to investigate its claim and notify the opponent of the nature of the dispute and claim.
Application for a Grant ad colligenda bona ( a limited grant of probate where there is a will which is often subject to a dispute)
It may be that the personal representatives need to apply for a grant of probate in order to preserve the assets of the estate, for example if a property needs to have substantive works done to it to avoid its destruction or decreasing in market value. In this case it is in the claimant’s best interests to preserve the value of the estate. The claimant could therefore agree to remove the caveat from the District Probate Register in order to allow the estate to preserve the assets, pending the outcome of litigation and a limited grant of probate can be obtained, namely a grant as colligenda bona. This does not allow the estate to be distributed.
Injunction to prevent estate assets from being distributed
What can the claimant do if it only becomes aware of its potential claim after probate has been granted and there is reasonable suspicion that the estate is being distributed in accordance with the will or intestacy?
A simple approach would be to request an undertaking from the estate that it will not distribute assets until the outcome of the potential litigation. However should the estate be hesitant to provide such an undertaking and there is evidence that assets are being distributed from the estate, the claimant can make an application for an injunction to prevent the estate from distributing assets. This would be a last resort as it is costly and the claimant has a high onus upon it to prove the possibility of its potential claim against the estate along with providing strong evidence that the assets are being distributed. An example of the evidence would be that an estate property has been transferred into another person’s name.
There are therefore various ways in which a claimant can protect his position when discovering he or she has a claim against a deceased’s estate, early action is preferred and is the cost effective method.