When is it too late to challenge a Will? 

The vast majority of Will disputes will occur shortly after the death of the deceased, although it is not uncommon for claimants to delay initiating legal proceedings for various reasons.

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In an ideal world, nobody would ever be in the situation in which they have to challenge the Will of a recently departed loved one. But, unfortunately, such claims are becoming more prevalent, with the number of probate cases going to court now almost 2½ times the level in 2016.

The vast majority of those claims will occur shortly after the death of the deceased, although it is not uncommon for claimants to delay initiating legal proceedings for various reasons. So, are there any problems with delaying making a claim, and is there a time limit on when a claim can be made?

Strictly speaking, the answer is no, there is no time limit. However, the courts may apply the principle of ‘laches’ to dismiss claims that have been unreasonably delayed. Laches refers to the unreasonable delay in pursuing a legal right or claim, which can result in the forfeiture or denial of that right. This is because the passage of time can prejudice the opposing party, such as witnesses becoming unavailable or evidence becoming stale. In the case of estate disputes, it may also be the case that the money has all been distributed and intermingled with the beneficiaries’ money, making it all but impossible for the money to be returned to the estate.

The recent case of James v Scudamore [2023] EWHC 996 (Ch) is now the leading authority on how laches will be applied in probate challenges. It summarised the key principles as:

  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. 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. Where the delay has led to others’ detrimental reliance on the inaction, such as distribution of the estate.

The case involved a codicil that was executed on 24 December 2002, and which benefitted the deceased’s wife. The deceased died in 2010. In 2013, the claimant alleged that the codicil was not properly executed. However, he did not issue a claim until 2020, after the deceased’s wife and one of the attesting witnesses had died.

The judge held that either:

  1. The claim was barred by laches; or
  2. The underlying claim to recover the assets from the beneficiaries would be barred by the laches, and, therefore, the probate claim ought to be struck out as utterly academic and without purpose.

In either event, it meant that the claim should fail because of laches.

For potential claimants considering challenging the validity of a Will, understanding the implications of laches is crucial. Delaying legal action can weaken the claim and may result in its dismissal, even if there are valid grounds for contesting the Will. It is, therefore, essential to seek legal advice promptly to assess the prospects of the claim and initiate proceedings within a reasonable timeframe.

Navigating Will disputes can be complex, but the specialist Wills, Trusts, and Estates Disputes team at TWM possesses extensive experience in handling a wide range of Will disputes, including cases involving the application of laches. Our team understands the nuances of Will disputes and provides strategic advice tailored to each client’s unique circumstances. We work diligently to protect our clients’ interests and strive to achieve favourable outcomes in their cases.

To find out more about how we can help, please contact us today.

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The vast majority of Will disputes will occur shortly after the death of the deceased, although it is not uncommon for claimants to delay initiating legal proceedings for various reasons.

When is it too late to challenge a Will? 

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