The Risk of Delay When Challenging a Will

March 6, 2024

By Patrick Murphy

Whilst there is no time limit to contest a will or codicil, the recent High Court decision of James v Scudamore [2023] EWHC 996 (Ch) demonstrates the risks claimants could face if they unjustifiably delay bringing a claim.

Overview

In James v Scudamore [2023] EWHC 996 (Ch) the claimant waited seven years after initially obtaining legal advice to issue legal proceedings to contest a codicil to his father’s will. The High Court determined that this delay was unjustified, and dismissed the claim.

Whilst there is no statutory time limit to bring a claim to contest a will, this ruling is significant as it shows the High Court is prepared to recognise the doctrine of laches in a probate claim, whereby unreasonable delay in asserting a claim can result in the claim being dismissed.

Facts

Ivor Percy James died in 2010, leaving a will which was prepared in 1998, and a codicil which Ivor executed in 2002. Christine, Ivor’s second wife, obtained grant of probate and administered the estate in July 2011.

The claimant is Ivor’s son from his first marriage. He took legal advice in 2013 regarding the validity of the codicil, claiming that it had not been executed in accordance with the requirements of the Wills Act 1837, because the witnesses had signed the codicil on a different date to Ivor, and because Christine had completed Ivor’s signature as Ivor had been unable to.

The significance of the codicil was that it replaced Christine’s life interest in Ivor’s property which the will provided her (i.e. the right to live in Ivor’s property for the rest of her life) with an absolute interest (i.e. outright ownership). This meant that for the claimant, if the codicil was invalid, he and his brother would inherit the property after Christine’s death (Christine’s life interest coming to an end upon her death), whereas if it was valid, the property would pass under Christine’s will, which – when she died in 2018 – left 70% of her entire estate to her own sister, and the other 30% to the claimant’s children, cutting the claimant out completely.

The claimant issued his claim challenging the validity of the codicil in 2020, seven years after first taking legal advice and nine years after Ivor had died. By this time, Christine, and one of the witnesses to the codicil had died. The only surviving attesting witness was the mother of the claimant’s former partner.

The High Court’s Decision

HHJ Matthews barred the claim because of the claimant’s delay:

“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. The claimant knew what the position was, but after instructing solicitors to investigate his claim, did nothing. Christine thereafter acted to her potential detriment on this inaction by making a fresh will partly in favour of the claimant’s children, and by administering and distributing her late husband’s estate. The interests of justice have also suffered, because of the loss of the best evidence from Christine (and indeed Noel), better evidence from Dawn and also the loss of potentially relevant documentation from Christine’s house.”

The claimant was unable to justify the seven-year delay between taking legal advice and bringing the claim, and the High Court decided that the delay, and the knock-on effects of it (including the deaths of witnesses and the loss of evidence), meant that the claimant was barred from bringing his claim.

Comment

• Bringing a claim to challenge a will is not subject to a statutory limitation period. However, what this ruling shows is that the High Court is prepared to recognise the doctrine of laches as a bar to bringing a probate claim if a lengthy delay cannot properly be justified.
• Executors or beneficiaries defending a challenge to a will may be able to rely on the claimant’s delay in their defence, particularly if it has been lengthy and unjustifiable.
• This judgment emphasises the importance of acting promptly for claimants who are considering challenging a will.

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