There is no formal time limit within which a person may bring a claim to challenge the validity of a Will.
Whilst there is technically no limitation on bringing such a claim, there are a number of reasons why it would be preferable to pursue the claim sooner rather than later.
Firstly, once probate is granted, the executor of the estate will now have complete access to the estate and its funds. The estate funds will then be distributed to the appropriate beneficiaries which naturally results in the monies becoming more difficult to recover.
Secondly, evidence you may wish to rely upon could be lost over time. For example, a validity challenge will often involve obtaining a copy of the drafting solicitor’s Will file. Solicitor’s firms are only required to keep their files for a certain period of time before they are destroyed. Often, without a copy of the solicitor’s file, a claim will be difficult to pursue as these files contain vital information for validity challenges.
Thirdly, you may seek to rely upon witness evidence that may become more difficult to access as time progresses. This may be due to losing contact, witnesses moving address and not being able to locate them, or issues with capacity or death. The sooner witnesses are contacted, the more likely it is that they will be available to be tracked down and also have a better recollection of events.
Finally, Laches. This is something that we need to consider in further detail below with the assistance of a case that took place in 2023.
What is Laches?
In essence, Laches exists to prevent a claim from progressing at all. It’s literal meaning is unreasonable or undue delay in asserting a legal right which prejudices the opponent.
Laches first came into consideration, when discussing a validity challenge against a Will, in the case of James v Scudamore & Others [2023], which was struck out at court as a result of laches i.e. the court concluded that the claim should not be permitted to proceed due to unreasonable delay.
The Case - James v Scudamore [2023]
This claim was by a son, against his late father’s estate. The claimant’s father had died in 2010 and he had a Will from 1998, wherein the deceased gifted his second wife with a life interest in his home. The home would then pass to the claimant following her death. However, in 2002, the deceased had executed a codicil wherein he removed the claimant as a beneficiary of the property following the second wife’s death. The son was therefore due to receive nothing from the estate.
After his father’s death in 2010, the claimant sought legal advice in 2013 but took no action. Some seven years later the claimant decided to pursue a claim, by which time the second wife had already passed. He sought to invalidate the codicil on the basis of invalid execution and pursue his interest in the property under the terms of the original Will from 1998.
The claimant sought to challenge the execution of the codicil which had been executed some 11 years ago. When pursuing such a challenge, witness evidence is crucial and due to the time that had elapsed, one of the two witnesses had died at the time of pursuing the claim and the other witness was considered as biased, as she was the mother of the claimant’s partner.
During the hearing, the Judge advised of the presumption of valid execution and as the claimant was unable to present any strong evidence to the contrary the presumption had not been rebutted.
The judge also considered previous case law that concluded where it would be: “practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.”
As the father had died in 2010, and the claimant had received legal advice in 2013, it was considered that the claimant should have brought his claim earlier and that the delay in doing so was unreasonable. In addition, the second wife who had received the property had already had her estate distributed under the terms of her new Will, which had been executed after the codicil in 2002 and included the distribution of the property, knowing it would become her own asset. The claim being permitted to proceed would therefore have a detrimental impact on everyone involved.
The judge concluded:
“I am entirely satisfied […] 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.”
Conclusion
Whilst there is no limitation period of bringing a validity challenge against a Will, this case does demonstrate the reasons why you should seek advise on a potential claim as soon as possible.
Failing to obtain legal advice during the early stages of the dispute could have a negative impact on your claim or could result in you not being able to pursue it at all!
Inheritance Act claims
The position on pursuing a validity challenge differs greatly from claims being brought under the Inheritance (Provision for Family and Dependants) Act 1975 which must be issued with the court within six months of probate being granted. If limitation is missed, whilst you can technically apply to the court to bring the claim outside of limitation, the opportunity to pursue the claim has likely passed. An application to bring a claim outside of limitation will only be considered if it can be shown that the claim has good prospects and the claimant was not aware of the limitation period expiring.
If you need advice or assistance on a validity challenge or an Inheritance Act claim, please get in touch with our specialist inheritance dispute solicitors on 0161 696 6178.
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