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Is lodging caveat right way to settle claim?

Is lodging caveat right way to settle claim?

Postby raydona » Sun Apr 02, 2017 12:59 am

Hello, I wanted to bring a civil action against a person. Unfortunately, he died before I could start proceedings. He left a will. Can I lodge a caveat to stop the issue of a grant of representation (probate) until the beneficiaries of the will have settled what would have been my claim or are there other ways to pursue my claim? All answers would be greatly appreciated.
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Re: Is lodging caveat right way to settle claim?

Postby atticus » Sun Apr 02, 2017 7:24 am

No.

You need to deal with the executors/administrators of the estate (not the beneficiaries) and do not wish to hinder their taking office.

If anything, put in a standing search for a grant.
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Re: Is lodging caveat right way to settle claim?

Postby miner » Sun Apr 02, 2017 4:53 pm

No, that is bad - very bad - legal advice.

If you are serious about lodging a caveat against the estate preventing a grant being taken out, do it immediately, as the caveat stops the grant being issued. Once the grant has been issued, you are screwed, so act immediately and don't faff around waiting to see whether or not it's been issued, as it could be issued while you are in the process of doing your search.
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Re: Is lodging caveat right way to settle claim?

Postby Smouldering Stoat » Sun Apr 02, 2017 5:10 pm

How is the OP to be paid, if not by the executors? If he successfully prevents them from taking office, who will pay him?
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Re: Is lodging caveat right way to settle claim?

Postby miner » Sun Apr 02, 2017 5:38 pm

You seem not to understand or to misunderstand the purpose of a caveat.

All it does is to temporarily delay the issuing of a grant - until issues are resolved in some way and the caveat is removed. It does not, as you suggest, prevent the Executor(s) from taking office.
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Re: Is lodging caveat right way to settle claim?

Postby Smouldering Stoat » Sun Apr 02, 2017 6:15 pm

So it temporarily prevents the executors from taking office. Who is going to pay the OP? This is not a dispute about the estate: it arose before the deceased died. Only the executors can settle it.
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Re: Is lodging caveat right way to settle claim?

Postby atticus » Sun Apr 02, 2017 8:04 pm

Why should the OP want to prevent a grant being taken out, miner?
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Re: Is lodging caveat right way to settle claim?

Postby miner » Sun Apr 02, 2017 9:09 pm

Simply because it may conceivably be a useful tool or lever in dealing with the issue the OP raised. It seems to me that there may be monies or assets in the estate which should not be there. It is merely a "holding" action. If not appropriate then is is a simple matter to withdraw the caveat and let the administration proceed.
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Re: Is lodging caveat right way to settle claim?

Postby dls » Mon Apr 03, 2017 5:31 am

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.
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Re: Is lodging caveat right way to settle claim?

Postby atticus » Mon Apr 03, 2017 5:57 am

miner wrote:No, that is bad - very bad - legal advice.

Sorry, but no. See dls and below.
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