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Over the past decade, there has been a significant increase in the number of contested probate claims that reach trial. Ordinarily, they involve a challenge to the validity of a will, but are not necessarily limited to that. For example, our contentious trusts and probate team recently acted in a widely reported High Court claim, Re McElory [2023] EWHC (Ch) involving the revocation of a grant of probate, many years after it had been issued.

How long do you have to bring a probate claim?

Curiously, there is no statutory (i.e. law prescribed by parliament) time period to bring a probate claim. This can have distinct advantages for potential claimants, as it allows them time to gather evidence and form a view on the merits of their potential claims.

However, the lack of a prescribed time period is not particularly helpful for executors or beneficiaries, who understandably want estates to be administered, especially if they face claims long after the estates have been administered.

The case of James v Scudamore [2023] EWHC 996 (Ch)

A recent decision by the High Court in James v Scudamore [2023] EWHC 996 (Ch) has provided much needed clarity, for claimants and defendants alike, on the when a probate claim will be barred by delay.

Turning to the facts first, the deceased executed a codicil on Boxing Day 2002. It benefited his wife. He died in 2010. In 2013, the claimant, one of the deceased’s sons, alleged that the codicil was not properly executed. He did not formally issue a claim until 2020. By this point, the wife and one of the attesting witnesses had died.

The defendants submitted that they had suffered a detriment, as the wife has already administered her husband’s estate and also made a will leaving part of her own estate, to the claimant’s children. Had the claim been brought earlier, then she may not have left a will benefiting the claimant’s children. The court also considered that the key witnesses, namely the wife and one of the attesting witnesses, had died: their evidence would have been key, had the claim been brought earlier.

The judge, having undertaken an extremely detailed analysis of the last 150 years’ worth of cases concerning delay (laches), synthesised his decisions into four points, representing the law on the “probate doctrine of laches”:

  1. Where a person having a right to intervene in existing probate proceedings is aware of those proceedings and of that right, but deliberately abstains from joining them, he or she is bound by the result…
  2. Explicable delay, even when coupled with taking a legacy under a will proved in common form, is not generally enough to bar a claimant from taking probate proceedings…
  3. But unjustified delay, possibly on its own…, and certainly when coupled with acts amounting to waiver of the claimant’s right, will bar the claim…
  4. Similarly where the delay has led to others’ detrimental reliance on the inaction, such as the distribution of the estate…”

Whilst each potential claim will turn on its own facts, the case acts as a firm warning to potential claimants, that procrastination or delay in promptly pursuing a formal claim to challenge the validity of a will or other testamentary document, could be fatal.

Get in touch with our probate solicitors

Early specialist advice should be sought at the outset, to reduce the risk of being barred from pursuing a claim. If you require advice relating to a probate claim, please don't hesitate to contact our team by completing the enquiry form below.

Key Contacts

James Wallace

Contentious Trusts & Probate Partner

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Vlad Macdonald-Munteanu

Contentious Trusts & Probate Senior Associate Solicitor

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