Navigating Limitation and the Doctrine of Laches in Contentious Probate Claims

Tomas Hayden, Legal Executive at Holmes & Hills Solicitors, explains how limitation periods and the doctrine of laches can affect contentious probate claims.

What is a Limitation Period in Contentious Probate Claims?

In litigation, most claims are subject to a fixed time limit within which proceedings must be issued to avoid becoming statute barred. This is known as the limitation period. For a potential Claimant, issuing a claim after the limitation period has expired will likely prove fatal to their claim; conversely, for a potential Defendant, a claim issued after the limitation period has expired will likely provide a complete defence to that claim, notwithstanding the merits of the claim being advanced.

The limitation period that applies will depend on the type of claim being pursued and, as the title suggests, in this article we are focusing on claims that commonly arise in disputed estates.

Limitation Periods Under the Inheritance (Provision for Family and Dependants) Act 1975

A Claimant who is seeking financial provision from an estate under the Act has six months from the date of either a Grant of Probate or Letters of Administration being issued. To investigate whether a Grant has been issued, see the following article: How Can I Find Out if Probate Has Been Granted?. Potential claimants should not delay if they are considering a claim under the Act.

Can You Bring an Inheritance Act Claim Out of Time?

The Court does have discretion to give permission to a Claimant to bring a claim out of time i.e. after the six-month period, pursuant to section 4 of the Act. But this should not be relied upon, and the Court will consider, among other factors, whether the Claimant has acted promptly in bringing a claim. In Berger v Berger [2013] EWCA Civ 1305, the Court of Appeal confirmed the following factors will be taken into consideration:  

1. That the Court's discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
2. The onus is on the Claimant to show sufficient grounds for the granting of permission to apply out of time.
3. The Court must consider whether the Claimant has acted promptly and the circumstances in which they applied for an extension of time after the expiry of the time limit.
4. Whether negotiations were commenced within the time limit.
5. Whether the estate had been distributed before the claim was notified to the Defendant.
6. Whether dismissal of the claim would leave the Claimant without recourse to other remedies.

Why You Should Not Delay an Inheritance Act Claim

The strict application of the six-month limitation period means that potential claimants should not rely on the Court’s discretion to grant permission out of time. If the limitation period is almost upon a Claimant, then it may be appropriate to try and enter into a Standstill Agreement to preserve the limitation period or, failing this, issue the claim protectively.

For further information about claims under the IHA, see our article: Can I bring a claim against an estate?

Will Validity Claims

Unlike claims under the Act, there is no statutory limitation period for challenging the validity of a Will. Although, it is advisable for a potential Claimant to not delay for a number of reasons:

1. If Probate is granted, the executor will have access to the funds and may distribute the estate, making it more difficult to recover assets even if the validity claim is successful.
2. It will be harder to obtain and preserve crucial evidence. For example, a solicitor’s Will file may be destroyed.
3. Witness evidence will be harder to obtain (or impossible, in the event of death or incapacity of the witness).
4. The doctrine of laches.

Understanding How Delay and Laches Affect Will Challenges

Where there has been inordinate and inexcusable delay, and that delay renders it unconscionable for the claim to proceed, the Court may decline to grant equitable relief. By failing to bring the claim in a reasonable period of time, a Claimant can be barred by laches.

Delay alone is not sufficient. There must also be unconscionability i.e. that because of the delay caused by the Claimant, it would be unconscionable to allow the claim to proceed.

If a Defendant relies on laches, then the burden of proof lies with them to prove that it is applicable.

Case example: James v Scudamore [2023]

In the recent case of James v Scudamore [2023] EWHC 996 (Ch), the Court held that “the claimant is barred by what I have called the probate doctrine of laches”. In this case, the deceased died in 2013, and the Claimant sought advice shortly after but did not pursue any claim. In 2020, some 7 years later, the Claimant pursued a claim that a codicil was not executed correctly. The claim failed because:

1. One of the attesting witnesses had died;
2. The surviving witness was the mother of the Claimant, whose evidence was held to be unreliable; and
3. The delay was considered unjust as the Claimant initially sought advice in 2013.

The Court emphasised that the Claimant had taken advice shortly after the death yet allowed many years to pass before issuing proceedings. The delay therefore rendered it unconscionable to permit the claim to proceed

Speak to our Inheritance Disputes Team

Delay can irreparably damage even a strong claim. Early specialist advice is essential to protect your position and avoid losing the right to pursue relief.

If you require advice or assistance, please contact a member of our Inheritance Disputes Team.