CAVEAT

Knowledge…Shared…Multiplies

I was recently approached by Jason (fictitious name) whose father had died a few days before. Jason’s father at the time of death owned very valuable real estate in the south of the island. His father was living alone though he had some caregivers including family members who visited him. Jason said that it was likely that his father had died at least a day before he was discovered.

Jason had contacted me because he said that one of the caregivers, Rex (fictitious name) stated that his father had made a Will. All the family members were surprised to hear of a Will and they asked the care giver to produce the Will so that it could be read to the family after the funeral.

The caregiver appeared to be ducking the family, Jason said. He did not turn up at the funeral. Jason and other family members found the whole situation suspicious and a friend advised him to contact me.

File a caveat

I immediately told Jason that he needed to file a caveat. By the time Jason and I were speaking, 12 days had passed since the death of his father. Jason was hearing the term caveat in the context of the death of his father for the first time.

I explained that when a person dies the Court will have to appoint someone as the Legal Personal Representative (LPR) of the deceased. Once appointed the LPR would be responsible for the estate (the assets) of the deceased. If the deceased died leaving a valid Will the LPR would be responsible for distributing the estate in accordance with the Will. If the person died without leaving a Will, the person is said to die intestate, and the LPR will be responsible for distributing the estate in accordance with the laws of intestacy.

Jason wanted to know if appointing a LPR was the same as probating the Will. I told him yes. I explained that when a Will is involved the language used is ‘probate’ and when there is no Will the language used is ‘administration’. The end result, whether there is a Will or not is essentially the same: the Court appoints someone who has the authority to distribute the estate. The language used in the case of a Will is that there has been a grant of probate; while the language used in the case there is no Will, is that there has been a grant of administration or letters of administration.

Once a person is appointed LPR they have the authority of the Court and they can proceed to share out the assets of the estate of the deceased. Whatever is done in accordance with the relevant law, the provisions of a Will or the law of intestacy, is valid.

Once a person is appointed LPR and is alive, it requires legal action to have them removed. Such legal action can take years and unless a court grants an injunction, the LPR can go ahead and distribute the estate of the deceased.

A caveat blocks appointment of an LPR

After giving that background, I explained to Jason that what a caveat does is to block the appointment of an LPR. That is what makes a caveat such a valuable instrument. If there is any concern that someone wants to improperly gain control of an estate by producing a false Will, then a caveat can be filed to block them. If there is a concern that someone may apply for a grant of letters of administration and distribute the estate to the exclusion of someone who is entitled, such as an ‘outside child’ whose birth certificate does not register the deceased as father, then the ‘outside child’ can file a caveat.

A caveat is a short document addressed to the Registrar of the Supreme Court. It has a life of 6 months. However, it is renewable. There is no limit to how many times it can be renewed.

Caveat must be filed quickly

The case of Jason highlights the need to move quickly to file a caveat where there exist any possible issue regarding the estate of a deceased.

By the time Jason moved to file the caveat, 13 days following his father’s death, Rex produced a will in which Jason’s father allegedly appointed Rex sole executor and left his entire estate to Rex. And in just 11 days he had obtained a grant of probate. The caveat was therefore too late. The horse had already bolted.

Jason was astonished by that development. He wanted to know how could the Will be probated when it was not read to the family. I explained to Jason that the reading of the Will to the family was a tradition but not a legal requirement.

Jason shook his head and said that it seemed wrong and indecent for a person to be applying for a grant of probate even before the deceased person is laid to rest. But I explained to Jason that while it doesn’t look good and seemed immoral it was not illegal. I explained that where a Will exists, legally a LPR can be appointed anytime following the expiration of 7 days from the death of the deceased. And where there is no Will, an LPR can be legally appointed at any time following the expiration of 14 days from the death of the deceased.

The appointment of an LPR, in circumstances as Rex, based on a Will which carries the stench of suspicion, may be revoked. However, revocation requires court action which can run on for years. A caveat timely filed, like ‘a stich in time’, can save a lot of time and distress.