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Is lodging caveat right way to settle claim?

Re: Is lodging caveat right way to settle claim?

Postby atticus » Mon Apr 03, 2017 6:39 am

The point is that the OP engages with those appointed to deal with the estate. Their duties include settling debts of the deceased, dealing with claims against the estate.

This is illustrated by the fact that if they want to protect themselves against claims before distributing to beneficiaries, they make a statutory advertisement for claims against the estate.
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Re: Is lodging caveat right way to settle claim?

Postby theycantdothat » Mon Apr 03, 2017 8:43 am

Rule 44(1) of the Non-Contentious Probate Rules 1987 provides that "Any person who wishes to show cause against the sealing of a grant may enter a caveat [..]" If you are a creditor of the estate (and not otherwise interested in the estate) you have no reason to prevent the sealing of a grant. To use a caveat as a means of alerting the personal representatives of your claim is improper. It is also unnecessary because you can, as Atticus says, apply for a standing search if the death was in the last six months. If you do that you will receive a copy of the grant when it is issued. Once you have that you can make your claim.
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Re: Is lodging caveat right way to settle claim?

Postby Millbrook2 » Mon Apr 03, 2017 11:33 am

Given that it is one of the early duties of an executor to find out if the estate has debts to settle and they incur personal liability if they do not take the proper steps it would be wise to put in a standing search for the grant as Atticus suggests then contact the executors with the claim.
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Re: Is lodging caveat right way to settle claim?

Postby miner » Mon Apr 03, 2017 3:12 pm

dls wrote:The caveat is used where there is an intended challenge to the grant of probate.
A caveat is saying 'I want to challenge the validity of the will'.
where the will is not in issue, it is wrong. Unless and until the executors are appointed, with whom can a discussion take place as to what debts exist?
The caveat does nothing unless you intend to challenge a grant. Its misuse should leave the caveator open to liability for any costs incurred. This would be nil if it just expires, but rise rapidly if pursued.



I do not believe that you are quite right there.

A caveat prevents a grant of probate or grant of letters and administration being issued by the probate registry. It is very useful in so far as it enables the caveator time to make inquiries as to whether there are grounds to contest a will.


In the first instance, it is merely a holding action.

With respect, Executors are not "appointed". They derive their authority from the Will. Administrators are (appointed by the Court).

Discussions can, therefore, take place with Executors prior to a grant being issued and agreement be reached which can lead to the removal of the Caveat.
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Re: Is lodging caveat right way to settle claim?

Postby theycantdothat » Mon Apr 03, 2017 8:10 pm

The Rules are clear. A caveat is only appropriate if you want "to show cause against the sealing of a grant". In other words there has to be a probate action, that is an action challenging the validity of a will or seeking to prevent the issue of a grant to a particular person. If you are (only) a creditor you have no argument that a grant should not be sealed. It is on the contrary in a creditor's interest to see a grant sealed.
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Re: Is lodging caveat right way to settle claim?

Postby miner » Mon Apr 03, 2017 8:33 pm

Anyone can enter a caveat and there is no requirement to provide any reason for doing so. It can be removed as soon as the caveator decides it it either no longer necessary or appropriate to the particular circumstances in question. There is no disadvantage to lodging a caveat until the circumstances are clear that it is not needed, which may be for just a few days.

Once a Grant of Administration is issued, there is no turning back.
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Re: Is lodging caveat right way to settle claim?

Postby theycantdothat » Mon Apr 03, 2017 10:12 pm

miner wrote:Once a Grant of Administration is issued, there is no turning back.


How is that relevant to a creditor?
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Re: Is lodging caveat right way to settle claim?

Postby dls » Tue Apr 04, 2017 5:05 am

Once a Grant of Administration is issued, there is no turning back.

Nor is there any progress.
It is an utterly empty gesture. If the caveat is issued, the executor warns it off. The caveator cannot be stupid enough to challenge the issue on the sole basis that, well he wants to make a claim against the estate.

Miner, the trouble is that it is approaches like this which can very quickly double the costs of administration of the estate. It shows a lack of trust just for the fun of it.
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Re: Is lodging caveat right way to settle claim?

Postby atticus » Tue Apr 04, 2017 6:06 am

That approach antagonises further, increases costs, and leads to costs orders against the person lodging the caveat.

I think the topic has been thoroughly discussed for the present. Shall we see if the OP has any follow up questions?
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