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Bleak Prospects If You Delay Too Long – Challenging The Validity Of A Will

Bleak Prospects If You Delay Too Long – Challenging The Validity Of A Will

Bleak Prospects If You Delay Too Long – Challenging The Validity Of A Will

Possibly as a consequence of the fictional case of Jarndyce -v- Jarndyce in Charles Dickens’ ‘Bleak House’, probate litigation does not perhaps have a reputation for exceptional speed.  That is despite the introduction of e-filing and, since the pandemic, virtual online hearings.

But is there a limitation period for bringing a claim disputing the validity of a will or codicil.  Despite references in various dramas to “the statute of limitations” (or in real life England and Wales the Limitation Act 1980) perhaps surprisingly there is no set limitation period for bringing a probate claim. Personal injury claims generally have a three-year limitation period and claims for breach of contract negligence six years.  The limitation period for a claim under the Inheritance Act 1975 is six months from the date of the grant although in all of these situations the court has a discretion to extend the time limit in appropriate cases.

In the absence of a set limitation period for bringing a will validity dispute, however, does that mean that a claimant in such a case can adopt a fairly leisurely approach to the issue of proceedings.  As a result of the case of James -v- Scudamore decided earlier in the year it would appear not.

The deceased, Ivor James, died in June 2010 leaving a Will dated 6th March 1998 and a codicil dated 26th December 2002.  The deceased’s second wife obtained a grant of probate in July 2011.  The claimant was one of the deceased’s two sons from his first marriage.  In 2013, the claimant instructed solicitors to investigate the validity or otherwise of the 2002 codicil, in particular whether it had been properly executed under Section 9 of the Wills Act 1837 which the judge decided that it probably had been. Essentially, the codicil replaced a life interest in the matrimonial home given by the deceased to his second wife (with the reversionary interest going to his sons) with an absolute interest in the home such that the second wife was then able to dispose of that interest in her own will.

The claimant, having received advice from solicitors in 2013 did not take the matter further at that stage.  In the meantime, the deceased’s second wife made a new Will in 2014 leaving 30% of her residuary estate to the claimant’s children.  She then died in February 2018, one of the two witnesses to the codicil having died a year earlier in 2017.

The first time that a claim was actually intimated was in 2019, some nine years after the Deceased had died and some 17 years after the codicil which was challenged had been executed.  Proceedings were issued in September 2020 and went to trial in late February/early March of 2023 with the judgement being given on 3rd May 2023.

Having carried out an extensive review of many cases, the judge decided that the claimant should be barred from bringing their claim by what he referred to as ‘the probate doctrine of laches’.

Despite the court’s natural inclination to try to decide cases on their merits, the judge decided that this sort of unjustified delay barred the claim succeeding in particular because other people had acted to their detriment in reliance on the claimant’s inaction.  In particular, the deceased’s second wife had got on with obtaining a grant of probate and administering the deceased’s estate, but she had also then gone on to make a new will of her own in favour of the claimant’s children which she might not have done had she been aware of the claimant’s claim.

In addition, as a result of the delay, neither the second wife nor one of the attesting witnesses was alive to give evidence as to the circumstances in which the codicil was executed and in addition, some documentary evidence which was in existence in 2013 was no longer available to the court.  Finally, of course, witnesses’ memories fade with the passage of time.

Whilst it is true to say that on the evidence, the judge found that the claimant, his former partner and her mother had concocted a story about how the codicil was executed which the judge decided was untrue, this, nevertheless, represents an interesting development in the law of contentious probate claims.  If you are going to mount a challenge to the validity of a will you really need to get on with it and either ‘put up or shut up’.

Get tailored advice for dealing with contentious probate

To speak to a member of our expert team about a will dispute, contact us today by calling 0330 175 7621 or email us at enquiries@ibblaw.co.uk.

For specific guidance relevant to your situation, please contact our contentious probate specialist Paul Grimwood by calling 01895 207859 or emailing paul.grimwood@ibblaw.co.uk.