• Sectors we work in banner(2)

    Quick Reads

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.

I am entirely satisfied, applying the probate authorities discussed in the previous section of this judgment, that in the circumstances the claimant is barred by what I have called the probate doctrine of laches from bringing this claim.

Our thinking

  • Litigation in the Spotlight: Navigating Reputational Risk Under the Access to Court Documents Pilot

    Hannah Gornall

    Insights

  • When the Jellicle Ball Ends: Navigating Pet Ownership on Divorce

    Cara Fung

    Quick Reads

  • Navigating Dubai’s Onshore Courts: Structure, Appeals, and the Role of the Court of Cassation

    Maher Al Nashar

    Insights

  • Agricultural tenancies: back to basics

    Maddie Dunn

    Quick Reads

  • What Issue: Surrogacy and the Longleat family trusts

    Oliver Auld

    Insights

  • eprivateclient quotes Oliver Little on how tax clarity can help the UK regain confidence among global wealth holders

    Oliver Little

    In the Press

  • Mary Perham and Tristan Tydings write for IFA Magazine on business property relief changes

    Mary Perham

    In the Press

  • Disputes Over Donuts: A Conversation with Umar Azmeh, Registrar of the QICDRC

    Patrick Gearon FCIArb

    Podcasts

  • The EU Deforestation Regulation (EUDR) is amended: what is the EUDR and what must companies do now?

    Kerry Stares

    Insights

  • Post Omnibus amendments, a practical overview of the Corporate Sustainability Due Diligence Directive (CSDDD) for businesses

    Kerry Stares

    Insights

  • Hotel Management Agreements: avoiding common causes of dispute

    Thomas R. Snider

    Insights

  • Lump sum tax regime: higher annual flat tax and grandfathering provision

    Nicola Saccardo

    Quick Reads

  • 2025: Year in Review

    Thomas R. Snider

    Quick Reads

  • Family Investment Companies Explained: How Control Shapes Succession Planning

    Edward Robinson

    Quick Reads

  • Hubbis features Jeffrey Lee on the rise of the multi‑hub family office landscape

    Jeffrey Lee

    In the Press

  • QICCA Conciliation Rules 2026 - scope, confidentiality and process at a glance

    Dalal Alhouti

    Quick Reads

  • Conway v Conway: Proprietary Estoppel, Family Promises and the Limits of Informality

    Maddie Dunn

    Insights

  • Habits to Prevent Burnout in Law

    Rebecca Piper

    Events

  • Autumn Budget 2025: Extension of Schedule A1 Inheritance Tax “look‑through” to UK agricultural property

    Sarah Wray

    Insights

  • Freezing Orders: how are they enforced around the world? Switzerland perspective

    Pierre Bydzovsky

    Insights

Back to top