Legacy Management: latest developments May 2023

Insight

22.05.2023

Delay in probate claims

It is often assumed that there is no time limit for the bringing of probate claims. This is because there is no statutory time limit (under the Limitation Act 1980) for bringing claims to, for example, prove the invalidity or validity of a will.

However, two recent cases have confirmed that the court can dismiss probate claims on the basis of a long delay in bringing them, and / or on the basis that the claims would serve no useful purpose. These cases should serve as a reminder to charities to take advice as soon as they can when, for example, a later will has removed the charity from any benefit, but there is reason to believe that that later will may be invalid.

McElroy v McElroy [2023] EWHC 109 (Ch)

The claimant sought to revoke letters of administration relating to his brother's estate that had been granted to the deceased's widow more than nine years before, and in circumstances where the claimant had initially indicated he wanted nothing from the estate and the estate had been fully distributed to her. The claimant was seeking to prove a will from 2002 which he benefited from, and which would have been revoked under English law by the Deceased’s subsequent marriage to the widow in 2010. The claimant argued that at the date of the deceased’s marriage and death he had been domiciled in Scotland. Under Scottish law, the 2002 will was not revoked by marriage and therefore was the deceased’s last valid will.
The High Court was asked to decide, as a preliminary issue, whether the claim to revoke the grant should be struck out on the grounds of laches (ie, delay). The defendant argued that, although laches could generally only bar equitable relief, it was a defence to a probate claim if laches would bar any subsequent proceedings for which purpose the probate claim had been brought. In this case, the court found that any recovery claim arising against the defendant if the claimant were to be successful in the probate claim, would be equitable relief against which the defendant would be entitled to raise the defence of laches. The Judge held that the recovery claim was bound to fail on the ground of laches and therefore dismissed the probate claim, as allowing it to go ahead would serve no useful purpose and would be contrary to the overriding objective of the CPR of saving expense and avoiding delay.

James v Scudamore [2023] EWHC 996

The claimant challenged the validity of the deceased’s codicil dated 26 December 2002 (but not the underlying will). If valid, the codicil provided for a property in the estate to pass to the deceased’s second wife, Christine, absolutely. If invalid, the property would be held on life interest for Christine, and then for the claimant and his brother (the two sons of the deceased). The deceased’s will had been proved in July 2011, by Christine. Christine died in 2018, with her will appointing her estate out to her sister and the claimant’s children. Her sister then died six months after Christine. The claim was then issued in 2020.
Again, a defence was raised against the claim, on the basis of laches (delay). The court noted that laches can only bar equitable relief, and a claim to revoke a grant of probate is not a claim to equitable relief. However, where there was some underlying claim which can only be pursued if the grant of probate is revoked, then laches can be relevant. This is because if the underlying claim is the only reason for seeking the revocation of the grant, and if laches would bar that claim, then there was no point seeking revocation at all. Referring to McElroy v McElroy, the court noted that the court was entitled to dismiss a probate claim that has been rendered “utterly academic”.
The court found that the claimant’s claim was barred by what the judge called the “the probate doctrine of laches”. This was explained as follows:
Explicable delay, is not generally enough to bar a claimant from taking probate proceedings,
but unjustified delay, possibly on its own, and when coupled with acts amounting to waiver of the claimant’s rights (ie, acting in a way which indicates that the claimant does not wish to assert his legal rights), will bar a claim, and
where the delay has led to others’ detrimental reliance on the inaction, such as distribution of the estate, that may bar a claim.
Applying the above, the court found that the claimant knew about the possible invalidity of the codicil in 2013, but did nothing to pursue a claim (ie, unjustified delay). Instead, he waited until Christine and two relevant witnesses had died. Christine then acted to her potential detriment from the claimant’s inaction by making a new will partly in favour of the claimant’s children.

Conclusions

It is unusual for a claim to be brought to invalidate a will or codicil so long after the administration of an estate. However, there will be occasions where a charity only learns of some material information which supports a challenge to a will long after the administration.
In those cases, claims are possible and are not subject to a specific time limit, but if there is some unjustified delay in bringing the claim, and / or if that delay has led to other parties suffering detriment in reliance of that delay, the court may bar a claim. Further, if the claim is brought to allow some other claim to be brought, and that other claim would be barred on the basis of the delay, the probate claim may also be barred.
Charities should therefore act as soon as possible after learning of potential probate claims that would benefit the charity. They should seek advice and, if the advice is that the claim has strong merits and would benefit the charity financially (ie, if the potential recovery exceeds the potential costs), put the potential defendants on notice of the potential claim as soon as possible, and explain why the delay in pursuing the claim is not the fault of the charity. In the event that a settlement cannot then be reached, claims which would benefit the charity should then be brought without any further undue delay to minimise the risks of a defence being raised on the basis of laches (delay).

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.