How long do I have to challenge a Will?

What is a probate claim?

The term “probate claim” applies to any contentious matter concerning the application for a grant of probate, revocation of an existing grant, or the validity of an alleged Will.

Unlike in other types of claims – such as claims under the Inheritance (Provision for Family and Dependants) Act 1975 or the rectification of Wills which are required to be brought within 6 months of a grant of probate – no strict time limit applies to probate claims.

Recent case law, however, has highlighted the risks to claimants who delay in advancing probate claims.

McElroy v McElroy [2023]

In McElroy v McElroy [2023] the court accepted that a claim could be dismissed on the grounds of laches. This is essentially undue delay.

In 2010, the deceased married the defendant which under English law revoked any previous Wills executed by the deceased. The deceased instructed solicitors to draft a new Will following the marriage, however, he died unexpectedly before he could sign it. This led the defendant – the deceased’s wife – to apply to administer the estate on the basis that the deceased died intestate. These are the rules that govern the administration of a deceased person’s estate when they die without a Will.

The deceased had, however, executed a Will in 2011 while living in Australia. The terms of that Will left his estate to his brother, Paul. When the deceased died, he was living in Scotland where marriage does not result in the revocation of a Will.

Some ten years later, in 2021, Paul issued proceedings against the deceased’s wife on the basis that:

1. The deceased was domiciled in Scotland at the date of his marriage.
2. This meant the 2011 Will had not been revoked.

The case gave rise to interesting arguments as to whether the deceased was domiciled in Scotland. The deceased’s wife also defended the claim on the grounds of laches.

The judge held that a probate claim can be dismissed for laches and – amongst other things – stressed the importance of:

1. The fact that the assets had been distributed some considerable time ago.
2. The fact the proceedings could serve no practical purpose because a claim to recover estate assets would also be bound to fail owing to laches.

James v Scudamore [2023]

In the case of James v Scudamore, the claimant was barred from bringing a claim challenging the validity of a codicil, due to the “probate doctrine of laches”.

The claimant’s late father made a Will in 1998 and Codicil in 2002. The 1998 Will left a life interest in his property to his second wife (Christine), remainder to his two sons from his first marriage. The 2002 Codicil changed the terms of the Will so that Christine inherited his whole estate outright. The claimant in this case was one of the deceased’s sons.

In 2010, when the deceased died, Christine applied for a grant of probate, relying on a copy of the Codicil. The grant was obtained, and the estate was administered.

It was not, however, until some seven years later, in 2020, that the claimant brought a claim to challenge the Codicil for non-compliance with the Wills Act 1837.

The judge found that the claim was barred by what he termed the “probate doctrine of laches”.

The relevant principles can be summarised as follows:

1. Where a person has a right to intervene in existing probate proceedings to prove a Will – and they are aware of those proceedings and their right to intervene – but they deliberately abstain from doing so, they will be 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. Delay which leads to others’ detrimental reliance on the inaction, such as distribution of the estate, will increase the likelihood of the claim being barred.

Conclusion

It remains the case that there is no strict time limit to bring a claim to challenge the validity of a Will. Recent case law, however, demonstrates that claimants may face difficulties where there has been significant delay and where this has led to estate in question having already been distributed.

Please note that this article has been prepared for information purposes only and is not a substitute for legal advice. If you are considering bringing a claim, or are currently facing one, and would like to discuss your options further, please contact William Coon.