Whilst claims which challenge the validity of a person’s will do not have a limitation period any delay in bringing a probate claim may lead to the claim being barred.

The case of James v Scudamore is the leading authority on when a probate claim will be barred by delay. 

This case concerned a codicil that was executed by the deceased on Boxing Day and which benefitted the deceased’s wife.  The deceased died in 2010 and in 2013 the claimant who was one of the deceased’s sons, alleged that the codicil was not property executed.  However, he waited until 2020 to issue the claim.  By this time the wife and one of the attesting witnesses had died.

The judge did not accept the claimant’s reasons for waiting and was satisfied that the probate claim was time-barred by the operation of an equitable defence known as “laches”. 

The relevant factors in James v Scudamore which led to the claim being barred by laches were:

1. The Claimant had taken legal advice and instructed solicitors to investigate his claim in 2013 (seven years before his claim was issued);
2. The deceased’s second wife had acted to her detriment by making a will that benefitted the claimant’s children, and by distributing her late husband’s estate;
3. The interest of justice has suffered as the best evidence had been lost through the death of witnesses, the destruction of documents and the effects of time on the memory of those who were able to give evidence.

If you are interested in arranging a policy or would like a copy of our contentious probate brochure, please contact us either by telephone (0870 766 9997) or by email (info@boxlegal.co.uk) and we will be happy to help.

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Here at Box Legal we have been offering after the event legal expense insurance since 2004 and have a wealth of experience. We have competitively priced ATE insurance policies available for all types of contentious probate claims and can also arrange legal expense insurance cover for personal injury, clinical negligence, housing disrepair and financial mis-selling claims.

The number and variety of cases we arrange cover for is always increasing and so please contact us to discuss any after the event insurance requirements. We are happy to discuss and develop ATE insurance for case types we do not already insure.

If you would like to speak to us or obtain further information then please call on 0870 766 9997, or email info@boxlegal.co.uk