Grants of representation - Contentious probate: caveats and citations

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Overview

Contentious probate brings unique challenges to estate administration, requiring deep knowledge of legal procedures. This article explores caveats and citations, key tools in resolving disputes. Understanding these concepts is vital for SQE1 FLK2 exam candidates, as they are fundamental to managing estate disputes. We will cover the legal framework, procedural details, and practical use of caveats and citations, helping you effectively manage contentious probate.

Caveats: An Essential Tool in Contentious Probate

Caveats protect the probate process by allowing interested parties to pause proceedings while disputes are resolved.

Legal Basis and Purpose

Caveats are governed by Rule 44 of the Non-Contentious Probate Rules 1987, serving important purposes:

  1. To question the validity of a will
  2. To oppose proposed executors
  3. To allow investigation into possible issues
  4. To safeguard the interests of parties concerned about potential prejudice

Filing a Caveat

The process for filing a caveat involves:

  1. Identifying Grounds: Valid grounds include lack of capacity, undue influence, fraud, or non-compliance.

  2. Formal Application: The caveator files a formal application with the probate court, including a statement of grounds.

  3. Service and Notice: The caveat must be served to all involved parties, informing them of the challenge.

Duration and Extension

A caveat lasts for six months from the entry date, but extensions can be requested:

  • Extensions are typically for an additional three months
  • The court must be convinced of valid reasons for extending

Legal Effects and Consequences

Submitting a caveat has significant legal effects:

  • It halts the issuance of a grant of representation
  • The Probate Registry cannot proceed with the application
  • Any grant obtained while a caveat is in place is invalid

In Barton v Barton [2020] EWHC 2457 (Ch), the court emphasized the importance of observing caveats, declaring grants made in violation void.

Potential Outcomes

The result of a caveat depends on the case and evidence:

  • Grant of Probate: If the challenge fails, probate is granted.
  • Revocation of Probate: A successful challenge may lead to probate revocation and a new executor.
  • Compromise Agreement: Parties might settle, avoiding a full court hearing.

Citations: Encouraging Action and Ensuring Participation

Citations are formal notices that compel actions or participation in estate administration.

Types of Citations

  1. To Accept or Refuse a Grant

    • Purpose: To compel an executor to assume or renounce their role
    • Rule: Rule 47 of the Non-Contentious Probate Rules 1987
    • Consequence: Ignoring it may lead to the executor being bypassed

  2. To Propound a Will

    • Purpose: To force proof of a will's validity or surrender
    • Application: Used when there are doubts about authenticity
    • Example: Re Goodman [2013] EWHC 758 (Ch) clarified its use to compel disclosure of multiple wills

  3. To Take Administration

    • Purpose: Prompts entitled individuals to apply for administration
    • Importance: Vital in intestacy or when executors hesitate

  4. For Inactive Parties

    • Purpose: Engages parties whose inactivity affects proceedings
    • Effect: Ensures all parties are informed and can decide on their rights

Procedure for Issuing a Citation

Issuing a citation follows a structured process:

  1. Application to the Court: A formal court application stating the reasons and desired outcome.

  2. Court Order: If justified, the court issues an order detailing those to be cited and response times.

  3. Service of the Citation: Proper service on individuals named in the order.

  4. Response to the Citation: Served individuals must respond within the timeframe, stating their position.

Legal Implications of Citations

Citations carry strong legal obligations:

  • They require responses from the cited parties
  • Non-compliance can lead to losing rights in the estate
  • Citations can expedite contentious cases by forcing decisions

Complex Scenarios in Contentious Probate

Contentious probate often involves complex legal and factual scenarios.

Multiple Caveats and Competing Interests

When multiple caveats are filed, the probate process becomes challenging:

  • Each caveat is addressed individually
  • Courts may need to consolidate claims
  • Re Folkes' Will Trusts [2002] EWHC 1236 (Ch) emphasized a comprehensive approach in resolving disputes

Removal of Executors

Executor removal is guided by Section 50 of the Administration of Justice Act 1985:

  • Courts can remove executors if there are sufficient grounds

Key case law principles:

  • In Kershaw v Micklethwaite [2010] EWHC 506 (Ch), disagreement alone isn't enough for removal
  • Re Steele [2010] EWHC 2648 (Ch) showed removal is possible when mistrust affects administration

International Dimensions

Estates with international assets add complexity:

  • Interaction between domestic and foreign laws must be managed
  • International service of citations may be required
  • Marley v Rawlings [2014] UKSC 2 highlighted challenges in wills with foreign elements

Practical Applications and Case Studies

Case Study 1: The Contested Will

Scenario: Sarah suspects her brother influenced their father’s will, making him the sole executor.

Legal Strategy:

  1. Sarah files a caveat to pause the grant of probate.
  2. She issues a citation to propound the will, making her brother prove its validity.
  3. Her solicitor gathers evidence on her father’s mental state and will creation circumstances.

Analysis:

  • The caveat allows time for investigation.
  • The citation forces the executor to formally address the will's validity.
  • This strategy aligns with Larke v Nugus [2000] WTLR 1033, stressing solicitors’ duty to provide information when a will's validity is challenged.

Case Study 2: The Reluctant Executor

Scenario: Sisters Emma and Olivia are named co-executors. Olivia is hesitant and uncommunicative.

Legal Strategy:

  1. Emma issues a citation for Olivia to accept or refuse the grant.
  2. If Olivia does not respond, Emma can request the court to pass over Olivia.

Conclusion

Caveats and citations are powerful tools in managing probate disputes, offering structured methods for conflict resolution and estate administration. By understanding these concepts, FLK2 students can effectively address complexities in contentious probates. Further exploration of case laws and legal precedents enhances understanding, vital for those preparing for the exam.