Grant of Probate Stopped by a Caveat

[CJ70]

Good morning all,

I'd appreciate some advice on my brother lodging a caveat on my application for probate for my mum's estate please.
I'm so sorry for this being so long, I'm just trying to provide some basic background info.

My mother passed away just 10 weeks ago.
She was diagnosed as terminally ill just 6 weeks previously with numerous & wide spread cancers.
Background:
I'm the youngest of 4 children (all independent adults), mum divorced over 30 years ago & father deceased.
In 2014 my eldest sibling borrowed £39k from mum. There were never any formal agreements, just bank transactions for the payments to him & his promise to repay her soon after, citing 'cashflow problems'.
From 2014-2018 nobody pursued or questioned him too much about repaying mum (his once lucrative businesses went bust & he subsequently went through an acrimonious divorce in this time)
However, he did own a number of both residential & commercial properties that he received rents from, and was/is a fairly high earning professional, on circa £250-£350 per day.
Come 2018, us other 3 siblings, and mum also, began to ask for him to begin to repay mum. He refused to discuss with any of us - including mum.
This went on over the next few years - during which he was engaging in risky financial deals ('get rich quick schemes', gambling etc)
He was supported by family in many ways, including living with myself & my family for several months for no cost.
He was also having all his mail (post his divorce) sent to mums - including heavy parcels & the like. This became too much for mum, especially after the Covid situation began, but our requests for him to stop were ignored.
Mum often commented that he was 'waiting for her to die so he wouldn't have to repay her'. She often said to me & my other siblings that maybe she should change her will, but we didn't want her to do this as it wouldn't actually benefit her. We instead tried to get mum to obtain bank statements etc. which showed the payments to him (as he disputed them) so that we could rationally discuss the situation with him.
Mum found the whole thing very stressful to deal with on a one to one basis with him herself.
This was difficult because of Covid, mum being vulnerable & not letting us into her house or going out, and not having any internet/mobile banking etc. So it was a very slow process obtaining any bank statements etc.
So, when mum became ill & was given a terminal diagnosis, she asked to draw up a new will.
We 3 other siblings told her she didn't have to do this if she wasn't up to it, she could just leave it as it was. Her previous will, from 1991 split her assets 4 ways equally between us 4 siblings.
We didn't want her to change anything that wouldn't benefit her if it was too much for her.
Mum insisted she wanted a new will - for one thing my eldest sibling who owed her money was one of two executors on her 1991 will (along with one of my other siblings), and she told us that she didn't trust him to be an executor.
A local solicitor visited her at home in mid August (nobody else present) to lay out her options for a new will.
Mum went into hospital soon after, having contracted Covid & falling from bed, but before signing a new will agreement.
Whilst in hospital she asked to have the will drawn up & signed. she was extremely frail by this point, but only her body, her mind was still sound.
Myself & another sibling, who were present at hospital with her at the time, contacted the solicitor who attended the same day.
Her new will was signed, with one of the witnesses being a nurse attending to her.
Mum then passed away a couple of weeks later.
Sibling who owed her money knew nothing of her new will, but us other 3 did, but mum had asked us not to speak of it to him, and we respected that. Oldest sibling owing her money kept asking where her will was - whilst mum was still alive, but fading quickly in hospital. I simply told him that I knew which solicitor she had drawn a will up with, but now was not the time.
Upon mum's death, he insisted on getting her will the day after mum's funeral. We were prepared for him to be upset and angry, but he has since cut us all off.
We've applied for probate for mum a couple of weeks ago. It's a fairly small estate - under IHT threshold - and today we've received notification that eldest sibling has lodged a caveat to stop probate.
Although we kind of anticipated something would happen, it's nevertheless stunned us.
Eldest sibling isn't aware that mum had a solicitor visit her before she was admitted to hospital. I'm presuming he believes the will was only discussed &drawn up when she was in hospital.
I'm seeking legal advice from the solicitor who drew up her will, but I just want to ask if there is any advice on whether to ignore his caveat for 6 months (expires April 2023 - he lodged it the day after mum's funeral)
He's so far refused to speak with any of us, so we can only presume his caveat is based on his presumption that mum's will is not legal/fraudulent/coerced.
I don't care about the money, but the principal. He caused her so much stress for 8 years about the money he borrowed from her. She wasn't a wealthy woman & it feels as though he financially abused her & is continuing to do so after her passing.
I know legalities will only take facts into account, not feelings. But what is the consensus?
Leave it & see if he extends the caveat or issue a warning?

[des8]

Good morning, and condolences on the passing of your mother.

Avoid issuing a warning until it is the last possible course of action!
It can become extremely expensive to dispute.
I'm sure your solicitor will advise the same

Be ready for the long haul as caveats are cheap to enter and maintain. (for example I'm currently involved as executor in an estate that has been delayed for 3 years by a caveat)

You don't mention if your brother has been completely excluded from your mother's will.
It could be that he is looking to make a claim under the Inheritance (Provision for Family and Dependants) act 1975
If so do try and come to a compromise agreement

[dslippy]

Try to get a compromise. Will disputes are very rarely cost effective to run.

[twohoots]

Firstly, sorry for your loss. I have been in exactly the same position and it took 2 years and massive stress and upset to get this sorted. The thing is they can keep entering caveats every 6 months and it just costs them £3 a time so if they are hell bent on causing problems, what have they got to lose?

We gave our caveator the benefit of the doubt and thought he would give in and remove the caveats but it was evident he was not going to. Writing polite letters to him did not work either.

To be honest I wish we had entered a Warning much sooner than we did now because at that point he had to give his side of things to the Registrar and they must have thought it was a load of BS because they then approved the Probate application without asking us for any information. It was a massive relief but still doesn’t give me back all that time spent worrying and unable to grieve properly.

I am not clear whether your sibling has just lost his role as Executor or whether he has lost his share of the inheritance. But I am pretty sure that the estate will never get back the money your Mum loaned him because there is no evidence that it was a loan and not a gift. Same thing happened to us and we just had to write it off even though we had a little handwritten receipt from my Mum. The Police said that was not good enough!

Let us how you get on and best of luck.

Some people on here were extremely helpful and very knowledgeable and provided a listening ear in my case so I am doing the same for you.

[Hagalout]

Yes Twohoots is right, the Caveators appear to have the upper hand in most cases, one man put 4 different caveats in different names to stop my probate 3 of which used his address as the service address , even though I was the sole beneficiary. He told bareface lies on Affadavits, his daughter admitted knowing nothing about the caveat in her name but then covered for him by saying she had entered it but her dad was dealing with it?? and then she hasn't t been heard of since and he says he doesn't know where she is. The Probate have at long last issued proceedings on paper and it was agreed that we had a right of response to his Affadavit. But then they made a decision before they received our response.He had refused to repay some of my costs(£8000) in 2019 after his solicitor advised him to remove the 2 permanent caveats by consent so I refused to consent without some compensation(big mistake). The Registrar has awarded costs against him but only up to August 2020, which basically doesn't cover most of my costs, Affadavits etc. And half of the costs will be against his daughter whom we cant locate so I will probably get less than we asked for in 2019, assuming we get anything at all. But the point being is that his solicitor said we weren't entitled in 2019 as they were pre action costs, the Registrar seemingly agrees with my solicitor and is saying they should pay them but then says a cut off point of August 2019 which seems to be a contradiction. And they don't appear to have even questioned why the Caveats were entered in the first place or why he lied etc. Even my Barrister says Its a joke but advises not to appeal against the decision as it could go against us. It beggars belief.

[twohoots]

I sympathise Hagalout. It is so stressful going through this.

[JJW]

Hagalout

The Probate issued proceedings, what did they actually do, ours is at a statement, they are saying they can’t do anything further.

What did you do regarding the caveats?

[Hagalout]

Well presumably you haven't warned the caveat as yet, I think it is protocol to allow the caveator time to investigate their situation before issuing a warning, it would seem that your brother has no idea of the contents of the new will and may see sense when he sees it. In my case the same man was putting caveats on willy nilly in various family names, he wouldn't accept that his grandfathers estate and my mother's were seperate initially (they were unmarried partners for 47 years) it was sad really as his mother died a month before her father and that caused a lot of confusion, certainly in his mind it would seem. Four years later, my mother died and he started all this business. He eventually got rid of his solicitor and went out of his way to be awkward, I thought there was no way he could enter an appearance to the warnings but he did on two of them, lying through his back teeth.
That forced us to seek advise from a Barrister and after letters threatening court he re-employed his solicitor, who sent signed consent forms for the removal of the caveats but insisted i wasn't entitled to be compensated for the £8000 it had cost me up to then as the costs were Pre-action, consequently i refused to consent and was willing to go to court. After another 3 years due to covid and various other hiccups, including both him and his daughter changing their addresses and not informing the Probate Registry, we eventually got the Registrar involved and they said there wasn't much point in a court hearing as it could be dealt with on paper. He had to respond to my affidavit and the Registrar then issued a costs order but only up to August 2020.
We now have to try to recover those costs, yet still have no idea where his daughter is so probably wont get nothing from her, although she originally had no idea about the caveat in her name but I found her on Facebook and explained the situation, she then changed her tune, presumably to cover for her father.
I assumed Justice would be served in light of the way they have abused the system but they have let them off lightly and I am the big loser unfortunately, although it will still cost him more than he probably ever envisaged, hopefully anyway.

[JJW]

How did you get the Registrar involved, what reason did the caveator give?

[Hagalout]

There were two appearances entered one in his name and one in his daughters name, but as I have previously said the daughter knew nothing about any of it.
Both appearances were word for word identical stating they wished to contest the will on the grounds of lack of testamentary capacity, being the grandson/granddaughter of the deceased.
Firstly they are the Grandson and great granddaughter of my mothers partner, who's estate is obviously a separate thing entirely and there is no chance that my mother lacked testementary capacity anyway even if they did have a claim to her estate, which they wouldnt have a cat in hells chance by the way.
It is a natural progression that the Probate Registrar will have to be involved when all attempts to resolve have been exhausted.

[CJ70]

Thanks for all your replies & comments, and sorry not to have updated until now

We've spent the past few months attempting to engage our sibling who entered the caveat in rational discussion, without involving solicitors.
The only couple of verbal contact with him has heard him shout abusive comments about Mum; that she a nasty piece of work who bullied him & that we, like her, are all dead to him.

He eventually replied to our emails asking for his reason for placing the caveat, on 9th February.
For some reason, his response to us was a letter attachment that he had sent to the solicitor who drew up Mum's will, despite us telling him at that time that we had not instructed a solicitor at that point & wished to discuss/attempt to resolve between ourselves.
He claims the caveat was placed due to his belief that Mum lacked mental capacity.
We responded to this with dates given where Mum had been making all her own care/medical decisions up until 72 hours before her death, when she was given end of life medications. Sibling claims that capacity to make medical care decisions doesn't mean she had capacity to make financial decisions & claims Mum lacked an understanding of her estate/its value.
He asked for meeting notes with the solicitor who drew up Mum's will. We sent copies of this - in which Mum clearly gave accurate figures for her estate value of house & cash. Mum's reasons for changing her will were clearly noted too. Our sibling wasn't cut out of her new will, but left a lesser share, to reflect the money he owed her, and he was also removed as executor.
He went on to claim to be owed money from Mum's estate for cash he had gifted her between 2004 and 2014 - now claiming that these gifts were loans & claiming repayment plus interest, which he alleges was the 'understanding' he & Mum had.
In all the years of us & Mum trying to get him to repay his loan to Mum, he has never made any mention of this at all.
My Mum & Dad divorced in 1990 & after Dad died in 2000 Mum no longer received maintenance payments & was financially struggling.
All four of us have assisted Mum between 2000 & 2014 with cash, gifts, holidays, trips & Mum also lived with me & my family for 2 years.
None of us ever expected anything from Mum for any of this. We all just helped her according to our ability to do so.
We believe that our sibling is attempting to 'convert' his gifts to Mum into supposed loans now that Mum is no longer with us & he sees her estate as 'up for grabs'..
Probably because, although he was extremely wealthy in 2004, by 2014 his lucrative business went into insolvency, and his second marriage failed following his arrest for DV, resulting in him losing his six figure income stream. We believe his reason for never before claiming his gifts to Mum were actually loans because Mum would have obviously been alive & able to refute this herself.
Mum unexpectedly inherited money in 2014, which is when sibling borrowed the £39k from her, unbeknown to us other siblings at the time. Mum only confided in me about it when sibling asked her for a further £40k a few months later, which would have pretty much cleared her bank account out.
Prior to her lending him the money, Mum actually gifted all four of us from her inheritance, and paid for the entire extended family - about 30 of us - to spend a couple of nights in a hotel together over Christmas.
Mum would never have done this had she knew that;
a) that our sibling would borrow (take) such a large sum from her & refuse to repay it or
b) that she actually owed a sum of money to our sibling - or indeed anyone else.
So, in our reply to our sibling, we said that we didn't believe he should take out a caveat to make a financial claim on Mum's estate & that there was good evidence that Mum did have mental capacity to rewrite her will, and requested he remove the caveat so we can obtain probate & then could discuss any other details with him.
He's replied again to us last week that he wants us to provide proof of Mum's understanding of her finances, as he still has concerns about her will's validity.
He has admitted to owing Mum money, albeit a lesser amount, and as such has claimed that Mum has wrongly reduced his inheritance by too much. We can certainly show the transfers of money Mum made to him from her bank account totalling £39k once we have the grant of probate - although I'm not sure that's even relevant now? Mum 'made good' the money her owed her by reducing his inheritance, and so we're obviously not claiming that money from him at all.
And even if he owed her no money at all, Mum would've been entitled divide her estate as equally or as unequally as she wished?
He has claimed that he knows a caveat isn't used for financial claims, but mentioned the financial claim previously for convenience, and is now giving us notice of his financial claim, to be paid to him as a debt of the estate.

I think we have no option left but to issue him with a warning & hope that his caveat will be removed.
I fully expect him to respond with an appearance though.
How do things progress from there? Does it then go straight to the Chancery Division to await a Court date, or would it be initially looked at by the Court of Probate?
If we do manage to get the grant issued, we could at least have Mum's house sold, instead of letting it sit empty. Obviously we wouldn't be able to distribute anything, as we'd have to wait for his financial claim to hit & deal with that then.

Such a holy mess.

[twohoots]

Sounds like he is using delaying tactics like our caveator did. If it were me I would go ahead and issue a Warning. Putting in an “Appearance” is not a physical thing but responding in writing to your Warning. I think I said in my earlier post it is nothing to worry about and at least gets things moving. In simple terms you issue the warning and he then has to give his reasons for placing the caveat. The registrar then goes through that and if necessary gets back to you to hear your side of things.

In my case they never got back to me or asked any questions and things went very quiet for 8 months so I just had to sit tight And eventually the Probate Office just emailed to say the Grant was now approved and that was the end of the process. The grant came through a couple of days later and I was finally able to deal with matters and move on.

[Hagalout]

I cant get my head around that, TwoHoots, surely once the Caveat is permanent it can only be removed by a mutual consent summons. In my case the Probate Office did nothing. Even if the caveator wanted to remove it, you would have to sign the consent form.

[twohoots]

I cant get my head around that, TwoHoots, surely once the Caveat is permanent it can only be removed by a mutual consent summons. In my case the Probate Office did nothing. Even if the caveator wanted to remove it, you would have to sign the consent form.

the decision is up to the Registrar. I will see if I can find a useful link 4 u.

https://www.wrighthassall.co.uk/know...s-and-warnings

this might help Hagalout

i was never told which option the caveator took, all I can tell you is I did not have to give any evidence, any statements and didn’t have to fill in any additional forms or agree to anything. From the day we issued the warning we never heard a single word from the Probate Office until 8 months later when it was finally approved.

[Hagalout]

Ah right, so he never entered an Appearance by the sound of it.