Probate and Administration - Caveats, Citations and Passing-Over (3) Flashcards
What are Caveats, Citations and Passing-Over?
Caveats, Citations and Passing-Over: Potential applicants or beneficiaries may object to the issuing of grant, compel an issue of grant, or attempt to have a grant ‘passed-over’ by a prospective party in favour of themselves.
How are grants challenged?
Challenging Grant: Parties may object to an issue of grant by submitting Form PA8A to HMCTS.
(1) Caveat: HMCTS will issue a Caveat, which prevents the issue of grant until it is removed or expires.
Removal: Applicants can issue a Warning to the caveator, giving them 14 days to outline their opposition.
Expiry: Expires if unchallenged following Warning, and automatically after 6 months (can be extended).
Challenge: Following Warning, caveator can submit a document called an Appearance at Probate Registry.
>Caveat becomes permanent and can only be removed by court proceedings or the seeking of removal by Summons before the District Probate Registrar.
(2) Grounds: Caveats initiate the process to challenge the validity of the will.
How are applicants compelled?
Compelling Applicants: Parties can compel an applicant to take certain steps by applying for a citation.
(1) Citation to Take Probate: Compels an executor who has intermeddled with the estate to apply for grant.
Effect: Executor must apply within a reasonable time. If they fail to do so without good reason, the court can ‘pass over’ the executor in favour of the citor.
(2) Citation to Propound Will: Compels a party to propound a will that they allege to exist (but have not justified).
Effect: Citee must attempt to propound a will, if believed to diminish an current will or intestacy (i.e. a missing will is found). If they do not, the citor can apply for grant as if the alleged will is invalid.
>Effectively makes a challenger prove that an alleged new will actually exists.
(3) Citation to Apply or Refuse Grant: Compels the person with highest NCPR priority to apply, or refuse to apply, for grant. This is the standard means of clearing off.
Effect: Citee must take steps to apply, else the grant may be issued to citor (if they have priority).
How are applicants passed over?
Passing Over: Rather than compelling a person to take grant, individuals can simply apply to have order ‘passed over’ in favour of the next person (often if they have already intermeddled).
(1) Court Order: Court has discretion to ‘pass over’ if necessary or expedient to do so (s116 SCA).
(2) Case Law: Executor intermeddled but refused to apply. Court ordered priority to pass over them (Re Biggs).
(3) In Practice: This is a preferred method, as it means reluctant parties will not be pushed into accepting office.
