Generally, there is no limitation period applicable to probate claims concerning the validity of a Will.
In the case of Re Flynn [1982] 1 WLR 310, the Court refused to dismiss a probate claim because the claimants waited too long to issue it as it would have done so only if the delay was frivolous, vexatious, or an abuse of process. However, the case of James v Scudamore and others [2023] EWHC 996 (Ch) reflected a different view adopted by the Court barring probate claims with unjustified delay.
James v Scudamore and others [2023] EWHC 996 (Ch)
Background
The deceased died in 2010 with a Will and Codicil that left his share of the family to his wife, who was the executor and granted probate, absolutely. One of the deceased’s sons (from a previous marriage), who was the Claimant in this case, wrote to the wife alleging that the Codicil was invalid. The effect of this would have been that the wife would only have had a life interest in the property and the home would have gone to the two sons absolutely after her death. The wife replied to the son’s letter defending the validity of the Codicil and heard nothing more from the son.
She later sold the property and made a Will of her own dividing her estate between the Claimant’s sons and her own family. She died in 2018.
In 2020, the Claimant issued a claim against the wife’s executor seeking revocation of the probate of the Codicil. He relied on the evidence of the sole surviving attesting witness, who said that the Codicil had not been properly executed.
The issues concerned were:
- Was the probate claim barred by delay; and
- If not, was the Codicil executed in compliance with section 9 of the Wills Act 1837.
Decisions
The Court held that the claim was barred by delay. It was made clear that the probate doctrine of laches was different from equitable laches. The former barred proceedings where, for instance, distribution had already occurred, whereas the latter barred proceedings where it would be unjust to give a remedy because of delay as applied in the case of McElroy v McElroy [2023] EWHC 109 (Ch) as discussed in our previous blog. The Claimant instructed solicitors to investigate his claim and knew what the position was, and yet, he did nothing for more than 10 years. In the meantime, the wife acted to her potential detriment on this inaction by making a fresh Will distributing the estate of the deceased.
Comment
This case makes clear that a probate claim can be barred by unjustified delay. It happens in situations where:
- Unjustified delay leads to the loss or destruction of evidence, e.g. the death of an attesting witness or destruction of the will file; and
- Others rely on the claimant’s inaction to their detriment, e.g. spending or giving away their inheritance in the belief that their right to it is secure.
It serves as a warning to those potential claimants adopting a ‘wait and see’ approach waiting until perhaps more favourable circumstances before initial proceedings.
How can Nelsons help
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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