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If I could turn back time...I'd have challenged that will sooner

Generally, applications challenging the validity of a person’s wills are not time-limited.

In contrast, claims under the Inheritance (Provision for Family and Dependents) Act 1975 are time-limited to six months from the date that the Grant of Representation has been issued. Although there are exceptions to this rule, meeting the criteria for an extension can be quite challenging.

When challenging a will’s validity, it is best to act as fast as possible. There are multiple reasons to do this:

  1. Over time, the estate may be distributed to beneficiaries. If a significant amount of time passes before a claim is made, recovering assets can become difficult;
  2. Key evidence may be lost or destroyed;
  3. Witnesses cannot be relied upon to give evidence; and
  4. The concept of laches – which is the unreasonable delay in making a claim.

An example of how the concept of laches could effect a claim

James v Scudamore [2023] EWHC 996 (Ch)

The concept of laches was a key factor in this case, this is where it is considered there has been an unreasonable delay in asserting a claim.

The Deceased, Mr James, died in 2010, having made a will in 1998 that gave a life interest in his property to his second wife, and thereafter to his son, the Claimant. Mr James then amended his will in 2002 removing his son.

His Son took legal advice in 2013 after Mr James’s death, but made no further steps until 2020, where he then challenged the validity of the changes made in 2002. At this point, Mr James’s wife had also died.

The claim was based on ineffective execution, and as a result, the evidence of the witnesses would have been crucial. However, by 2020, one of the witnesses had died. The other witness was the mother of the claimant’s partner, which the court considered unreliable and biased.

Challenges to attestation and execution of a will require the "strongest evidence,"(Wright v Rogers (1869) LR 1 PD 678). This standard could not be met in this case, due to either death or bias.

The Judge referred to it being “practically unjust” to grant a remedy when a claimant’s delay caused significant disadvantage to the other party.

As a result, the delay between the claimant taking advice in 2013, and making a claim in 2020, was considered to be unjustified. As Mr James’s second wife had distributed the estate, and since died, her estate and its beneficiaries would be unfairly affected if the claim was allowed.

It was on this basis that the doctrine of laches served as a defence to a claim against the validity of Mr James’s will.

In reality, there is not any statutory time limit on challenging the validity of a will, and there is not really any time limit set out by the courts.

What it comes down to, is whether any application would detriment the other party or parties, and whether it would be unfair to do so. The consideration here would be what is the length of time that has passed.

In any event, challenging a will is something on which you should take professional legal advice on, so that you are fully aware of your options and next steps, and so that you can be represented by an experienced contentious wills and probate solicitor. 

To speak to someone in our Contentious Wills and Probate team, please email or phone 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), or 01788 579579 (Rugby Office).