Procedure
| Author | Nasreen Pearce |
| Pages | 205-228 |
Chapter 15 Procedure
15.1 INTRODUCTION
Prior to 2006, in the majority of cases the validity of a will was not challenged and the court’s role was limited to issuing the grant of probate or letters of administration. In recent years, however, there has been an increase in probate disputes. The Ministry of Justice statistics for 2019 show that there were 188 contentious probate cases brought in the Business and Property Court of the Chancery Division in 2019, and from January to December 2020 there were 446 probate cases listed. This does not include claims issued in other courts around the country that deal with contentious probate cases, nor cases that eventually settle. Wills which are not challenged are known as non-contentious or common form probate, and have been governed by the Non-Contentious Probate Rules 1987 as amended. Where there are contentious matters relating to the application for a grant of probate of the will, letters of administration of the estate of a deceased person or the revocation of a grant or the validity of a will, the claim made is known as a probate claim (rule 57.1(2) of the CPR). As from 15 October 2001, these disputes have been and continue to be governed by Part 57 of the CPR, as amended, and PD 57, but Part 1 applies to probate cases as it does to all civil proceedings in the county courts, the High Court and the Court of Appeal, and pursuant to rule 1.2 the court has a duty to give effect to the overriding objective when it exercises any power given to it by the Rules and the parties are required to help the court to further the overriding objective (rule 1.3). In addition, the Pre-Action Protocols also apply generally to all contentious proceedings, and these should be followed implicitly, as should the revised Chancery Guide (published by HM Courts & Tribunals Service in February 2016 and amended in June 2021). Although the Guide is not legally binding, the guidance and practice set out therein should be followed.
The Covid-19 pandemic had had an impact on all proceedings across all courts, with a greater reliance on technology and remote hearings being conducted at all levels. Because the situation is changing frequently, as is the policy, it is important
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to keep abreast of current guidance issued by the court and the government; for example, the filing of documents may be required to be undertaken by email and online procedures introduced, and it is also becoming usual to file bundles electronically. Where hearings are to be conducted remotely, it will be essential for practitioners to liaise with each other and with the court to ensure that the necessary arrangements are in place for the hearing so that the hearing takes place smoothly. This is particularly important where witnesses have disabilities or are otherwise vulnerable.
15.2 PART 1 OF THE CIVIL PROCEDURE RULES – ‘THE OVERRIDING OBJECTIVE’
The overriding objective referred to in rule 1.1 of the CPR is the cornerstone for all procedural and case management issues and decisions in all civil proceedings. Its objective is to enable the court to deal with cases justly.
Rule 1.1(2) of the CPR provides that dealing with a case justly includes, so far as is practicable:
(a) ensuring that the parties are on an equal footing ... ;
(b) saving expense;
(c) dealing with the case in ways which are proportionate—
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
The court has a duty to further the overriding objective by actively managing cases. Active case management includes:
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology, and giving directions to ensure that the trial of the case proceeds quickly and efficiently.
Although this list is not exhaustive, it gives the practitioner an overview of what the court will be looking to achieve and, therefore, it is well to take heed of these elements at the outset and to be prepared.
15.3 VENUE
Non-contentious probate matters are assigned to the Family Division of the High Court. All contentious claims are assigned to the Chancery Division of the High Court (rule 57.2(2) of the CPR). If, in addition to a probate claim, it is intended to apply for financial provision under the I(PFD)A 1975, this can be dealt with in the probate proceedings. All probate claims are allocated to the multi-track.
The county court also has jurisdiction to deal with a probate claim, but only where an application for a grant has been made through the Principal Registry or a county court where there is also a Chancery District Registry and the value of the net estate does not exceed the county court limit, currently £30,000. The reason for this is obvious in that probate issues require specialist chancery knowledge. The county courts with a Chancery District Registry are: Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester, Mold, Newcastle-upon-Tyne, Preston and Central London County Court. If proceedings are commenced in the High Court because the local county court does not have jurisdiction, the High Court may, if it considers it appropriate to do so, transfer the proceedings to a county court where there is a Chancery District Registry, pursuant to section 40(2) of the County Courts Act 1984.
15.4 FIRST STEP TO TAKE – ENTER A CAVEAT (OBJECTION)
Where there is any dispute as to the validity of a will or who is entitled to administer the estate, a caveat (objection) should be entered to ensure that the
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person lodging the caveat (objection) is informed of any application for the issue of a grant. A caveat (objection) should also be entered where time is required to obtain further information or evidence to:
(a) oppose proof of a will;
(b) obtain evidence to challenge the validity of a will;
(c) oppose the issue of the grant to the person entitled;
(d) ascertain the eligibility of the person entitled under an intestacy.
A caveat (objection) may be issued, for instance, where a beneficiary or any other person who has an interest in the estate of the deceased wants to start a probate action or has concerns about the executors appointed in the will or those entitled to apply for letters of administration in the case where the deceased did not make a will, i.e. on intestacy.
15.4.1 What is a caveat (objection)?
A caveat (objection) is a notice in writing issued out of the Principal Registry of the Family Division of the High Court or a district probate registry to show cause against the issue of a grant to anyone other than the caveator (objector). It requires the court not to permit a grant of representation to be issued in relation to the deceased’s estate without first giving notice to the caveator (objector) to enable that person to object to the grant being issued.
15.4.2 Procedure for entering a caveat (objection)
Currently, rule 44 of the Non-Contentious Probate Rules 1987 sets out the procedure to be followed when applying to enter a caveat (objection). Any person wishing to enter a caveat (objection) or a solicitor acting on his/her behalf, may enter a caveat (objection) as follows:
(a) online at www.gov.uk/stop-probate-application;
(b) by completing a notice in the prescribed Form 3 (see Appendix B1). The caveat (objection) is entered by lodging the completed form, either personally or by post, in any registry or sub-registry and paying the prescribed fee. However, the recent practice is to encourage online applications to be made, and sending the caveat (objection) notice by post is discouraged. With the reduction in postal services and/or the unreliability of the service due to the Covid-19 pandemic, it is advisable to avoid sending the notice by post.
The current fee for lodging a caveat (objection) is £20. If the application is made by attending the registry in person, the fee can be paid by cheque or credit or debit
card. If made by post, it can be paid by enclosing a cheque or if it is intended to make the payment by credit or debit card, by telephoning any district probate registry between 9.30 am and 3.30 pm. An official acknowledgment of the entry of the caveat (objection) is provided by the registry. All caveats (objections) are now entered into the registries’ computer system, known as Probateman.
15.4.3 Duration and renewal of caveat (objection)
Once entered, a caveat (objection) is effective for 6 months from the date of entry. This period may be extended by written application, which may be made by letter, to the registry or sub-registry where the caveat (objection) was entered within the last month of the period of 6 months. The application should request an extension of 6 months and must be accompanied by the prescribed fee. Further extensions may be applied...
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