Delay could bar your probate claim

Contested wills and inheritance claims have become more commonplace in the English courts in recent years. These proceedings often centre around challenging a will by disputing its validity. There are a number of grounds on which proceedings could be pursued, including lack of capacity, want of knowledge and approval, undue influence, want of proper execution or forgery.

There is no statutory time limit in which a contentious probate action must be made. This can be beneficial as it can facilitate thorough investigations before pursuing proceedings or enable actions to be pursued where the circumstances are unknown for some time. That said, the absence of a strict deadline can also result in delay and procrastination, preventing executors from concluding the estate administration or causing difficulties where the estate administration has already concluded and the assets in dispute have been distributed.

The recent judgment of James v Scudamore and others [2023] EWHC 996 (Ch) stresses the risks of over-reliance on the absence of a statutory time limit. In this case, the claimant, who was the son of the deceased, argued that a codicil amending his father’s will was invalid as it failed to comply with the Wills Act 1837. He had received legal advice about challenging its validity seven years before issuing the claim and had chosen not to pursue the claim until after his stepmother’s death. The family members defending the claim argued that the claimant had failed to comply with a number of procedural requirements and that the delay in bringing the claim was such that it would be unfair in the circumstances to allow the claimant to succeed.

The delay had led to others’ detriment, as the stepmother had already administered and distributed the father’s estate and had also subsequently made a will leaving some of her estate to the claimant’s children (which she may have left to others had the claim been brought earlier). In addition, key witnesses (including the claimant’s stepmother) had died by the time the claim was brought, preventing the court from considering their evidence which would have been available had the case been issued earlier.

HHJ Matthews, sitting as a Judge of the High Court held that the claim was barred because of the delay in bringing it. HHJ Matthews considered “that the following propositions are warranted:

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 in 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 distribution of the estate...”

James v Scudamore and others [2023] EWHC 996 (Ch) (at 197)

James v Scudamore and others is a warning to be prompt when making a claim, as any unjustified delay in bringing a claim challenging the validity of a will or other testamentary document could be detrimental. It is therefore important to take prompt action and to seek specialist advice at an early stage.