Regarding the Caveat Proceedings, according to the Non Contentious Probate Rules (Cap 10A) and the Guide to Non Contentious Probate Practice issued by the Hong Kong court, a person who oppose the issuing of a grant regarding a deceased’s estate can file a document named Caveat to the court for record of his objection.
What Is Caveat in Hong Kong laws?
A caveat in probate proceeding is a notice to the Probate Registry to do nothing without notice to the solicitor or the person who entered it. In practice, if a person wishes to stop a grant from being sealed by the Probate Registry, he (the “caveator”) may enter a caveat in the Probate Registry following the format stipulated.
The Function of a Caveat
A caveat may serve the purposes as follows: when a caveat is entered to the Probate Registry against the issuing of a grant regarding the estate of a deceased, the Probate Registry will notify the caveator, hence, the caveator has an opportunity to make enquiries and negotiate with the applicant for grant over the relevant disputes. Also, the Caveat Proceedings offers parties interested in the estate an opportunity to bring questions before the Court before they formally bring a probate action.
Once a caveat is entered against the estate of a deceased, the Probate Registry will not process the application except to ask the applicant to deal with the caveat. The Probate Registry would keep an index of all the caveats, which is available to the public for inquiry. If there are valid and subsisting caveats against the estate of a deceased, no grant will be issued by the Probate Registry.
A caveat is valid for 6 months. During such period, the caveator may withdrawn the caveat (if a Waring against the caveat has been issued by the applicant for grant, and an Appearance has been entered by the caveator, the caveat can only be withdrawn by an order of the Court). Successive caveats may be entered by the same person before or after the expiration of the 6 months’ period to extend the term of validity of the caveat.
How Can An Applicant for Grant Deal with A Caveat?
If an applicant for grant wishes to dispose of a caveat, he (the “person warning”) may issue a Warning requiring the caveator to give particulars of any contrary interest to the estate following the format stipulated.
A caveator may enter an Appearance following the format stipulated within 8 days of service of the Warning setting out his interest in the estate contrary to that of the person warning. Upon the caveator entering an Appearnce, the person who want to apply for a grant will need commence a probate action to strike out the Caveat and Appearnce before a grant can be issued to him. Alternatively, if the Appearance fails to set out any interest contrary to that of the person warning, the person Warning may apply to the court to strike out such Appearance.
If the caveator has no contrary interest but want to oppose to the issuance of a grant on other reasons, the caveator will need file a summons for directions to the Court along with the Appearance, which shall set out the reasons as to why a grant should not be issued to the person warning. At the summons for directions hearing, the Court would make directions with regard to the parties’ opinions. If the caveator agrees to withdraw the caveat, a consent summons should be filed for leave to do so. If the caveator refuses to withdraw the caveat, the Court may order the Appearance be struck out or direct the commencement of probate action in Hong Kong.
Where the caveator to the warning does not take the steps stated above, the applicant for grant (the person warning) may file an affidavit if the caveator has not entered an Appearance and the person warning has not received a summons for directions. An affidavit of service from the process server is also required. The caveat will be treated as having ceased to be in force.
For any issues regarding probate application procedure in Hong Kong or probate litigation in Hong Kong, please feel free to consult our Hong Kong Inheritance and Probate Practice team of YAN Lawyers.