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Probate and Estate Planning

There Is A Caveat to The Will – What are the Next Steps?

By Emily Chow

What can be done if there are disputes over the validity of a will or the administrator of the estate? Provided that the ‘Grant of representation’ has not yet been issued by the Hong Kong Probate Registry, which would indicate that it has already validated the will, a concerned party may enter a ‘Caveat’. This will ensure that the “Caveator’, that is. the person who lodges the caveat, will be informed if any application is made for the issue of a grant of representation.

While the existence of a caveat may indicate there are genuine concerns in a probate or administration process and therefore a sign of potential disputes, the effect of entering a caveat is not necessarily contentious in itself. Nevertheless, caveat proceedings do start when a caveat is lodged with the Probate Registry against an estate of a Deceased. The Probate Registry only process non-contentious applications for grant. If the application has become “contentious”, the contention must be resolved first. In theory, the entering of a caveat can be contentious, and the caveat must be dealt with first before the application can be processed further.

A caveat is a notice preventing a grant of representation being issued by the Registry without notice to the caveator. Some of the common reasons to enter a caveat are:-

•    To allow more time for the caveator to make enquiries, obtain further information or evidence to:

o    Oppose proof of a will
o    Challenge the validity of a will
o    Oppose the issue of the grant of representation to the person entitled
o    Ascertain entitlement where there is no will (the deceased died intestate)

•    To act as a preliminary step to a probate action, or to citation (for more information, see our article on citations)
•    To be a first step in an application by people who have equal entitlement to the grant of representation

Once entered, a caveat remains in force for 6 months from the date of entry and then automatically ceases to have effect, unless withdrawn or removed prior to such date. There is no limitation to the number of further caveats and extensions that can be made. 

How to Handle a Caveat?

Issuing of any grant of representation shall not be allowed if the Probate Registry has knowledge of an effective caveat. Where an effective caveat is in place, the applicant for grant of the relevant estate would be asked by the Registrar to deal with the caveat. This can sometimes come as a surprise to grant applicants as they may not have been previously aware of the caveat.

Depending on the circumstances, there are various ways of handling an estate with a caveat. In any event, given the many potential contentious issues that may arise and the sensitive nature of probate or administration in general, legal advice should be sought and the matter should always be handled with care.

A caveat can only be removed:-

•    By withdrawal of the caveat by the caveator giving notice at the Probate Registry, as long as an appearance to a warning has not been entered
•    By the non-appearance of a caveator to the warning to caveator
•    By an order of the High Court that the caveat does cease to have effect and a grant of representation be issued
•    By the expiration of 6 months form the date of entry or effective extension

It may be worrying to discover that a caveat has been lodge, but it is not unusual to find occasions where the caveat process is misused and caveats are simply lodged to stall for time, or even where parties have no grounds to contest a will or the administration of an estate. Where there is no valid reason to lodge a caveat, there could be costs consequences for the caveator. 

Whether you discovered a caveat or you are thinking of entering one, it should be reminded that caveat proceedings are by nature contentious and can well be the start of a litigation. Any step taken after the commencement of a caveat proceedings could cause legal consequences, including costs. It is therefore recommended that you seek independent legal advice before taking any step in dealing with a caveat.

If you have any questions regarding the above or would like to obtain further information on our probate and estate planning services, please feel free to contact our Probate and Estate Planning team.  

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

February 2021

 


 

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