Our previous blog discussed the use of caveats and applications for limited grants when there is a dispute over the validity of a Will. However, what if a person does not want to challenge the validity of a Will but simply makes a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act), should he/she still file a caveat in order to protect his/her position before a Grant of Probate is obtained by the personal representative? The answer is no and this blog will explain the reason why.
What is a standing search?
A standing search only applies to applications made in England and Wales. It allows a party to have a copy of a Grant when it is made. It remains in force for six months from the date the standing search is entered and is renewable just like a caveat. When a Grant is made within that period, the applicant will automatically be sent a copy of the Grant by the Probate Registry.
A standing search can also be made in relation to a Grant that was made within the last 12 months before the standing search is entered. For a Grant made more than 12 months prior to the standing search application, a party can apply for a copy of the Grant directly from the central probate register.
Standing search v caveat
A caveat is not appropriate if someone wishes to bring a claim for reasonable financial provision from the estate under the 1975 Act. Using it to buy more time is wrong and counter-productive as it will hold up the Grant and may incur unnecessary costs. The proper way to ensure that the person (as a potential claimant) knows when a Grant has been made and time starts to run is to use the standing search procedure, which will ensure that the person is notified when the Grant is made. In that way, the person can bring a claim under the 1975 Act within 6 months of the Grant being made.
Cost consequences
The Court will not tolerate caveats being entered or left in place on an unreasonable ground. The case of Elliott v Simmonds [2016] EWHC 732 (Ch) sets precedent for the Court to make a costs order against a party who pursues weak Will challenges and acts obstructively to cause delay to the administration of the estate with a caveat. In that case, the Court:
- found no reasonable ground to oppose the validity of the Will;
- disapplied the ‘no cost rule’ under the Civil Procedure Rules 57.7(5)(b), which states that:- “If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.”; and
- ordered the caveator to pay the estate costs with an interim payment of £65,000 for acting unreasonably even after she had all of the relevant documents to consider the merits of her case.
How can Nelsons help
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.