When considering whether to bring a claim against a disputed will, trust or estate, it's important to bear in mind the relevant time limits. You may have an especially strong or meritorious case, but if you are out of time in bringing a claim, your argument may fall at the first hurdle and any potential defendant could have a complete defence to the claim.
Charities must be aware of these time limits if they are to protect their legacy income.
There are different time limits in place depending on the nature of the challenge or dispute, some of which are strict, and these need to be considered carefully. This article summarises the time limits associated with some of the most common causes of action in contentious probate.
Section 22 of the Limitation Act 1980 states that in respect of any share or interest in the personal estate of a deceased person, a beneficiary has 12 years from the date on which their right to this share/interest accrued to bring a claim questioning full receipt of their entitlement.
Ordinarily, this is 12 years from the date of the testator’s death in the case of specific gifts including pecuniary legacies, but in the case of residuary gifts, it's 12 years from the date on which the personal representatives administered the estate and paid out any costs, testamentary expenses and other associated legacies.
It can be important to distinguish claims which would be brought against individuals in their capacity as personal representatives, from claims against individuals in their capacity as trustees of an estate.
Section 21(3) of the Limitation Act 1980 states that any claim in respect of a breach of trust, such as a breach of the self-dealing rule, must be brought within six years of the date of the breach. This includes claims against personal representatives in their capacity as trustees of an estate.
The ‘clock’ here runs from the date of the breach, not the date on which the claimant suffered loss. However, time will not start to run until the cause of action has ‘vested’ in the claimant. For instance, if a beneficiary is only entitled to trust property upon a certain age, the six year time limit will not begin until the beneficiary reaches that age. As Millett LJ identified in the Armitage v Nurse case :
“a beneficiary with a future interest…should not be compelled to litigate (at considerable personal expense) in respect of an injury to an interest which he may never live to enjoy.”
That said, section 21(1) of the Limitation Act 1980 states that there is no time limit to bring a claim for any fraudulent breach of trust, being a deliberate breach of trust committed by a professional trustee, nor in respect of recovering any trust property or proceeds of trust property which are in a trustee’s possession or have been 'converted' for their use; for example, a claim against an executor for misappropriating estate assets for their own benefit.
Where the administration of an estate has been frustrated, delayed or left uncompleted due to the actions or inaction of a personal representative, a claimant may consider removing them from their role.
The High Court has a discretionary power under section 50 of the Administration of Justice Act 1985 either to:
There is no strict time limit for making an application to the court here, so in the case of an executor, whose authority derives from the will, an application can be made at any point following the testator’s death, even before a grant has been obtained. This is seen in the Goodman v Goodman case.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 can be brought on the basis that the disposition under a will or the rules of intestacy does not make reasonable financial provision for the claimant.
Section 4 of this Act requires a claim to be brought within six months of the issue of a Grant of Representation.
If this time limit has expired, the court’s permission is needed to bring a claim and the claimant must give proper grounds for their lateness. The case of Re Salmon specified the factors which would guide the court here, including the promptness with which the claimant had acted and the circumstances in which an extension of time was being sought.
A claim can also be brought before a grant is issued, but the claimant must specify why it has not been possible for a grant to be obtained. This may be because a caveat has been entered against the estate, but as there is no legislation, case law or other rule to indicate how the court should respond in this instance it's advisable that instead of using a caveat to ‘buy time’, a standing search should be lodged at the Probate Registry so the claimant can be informed once a grant is issued, and therefore monitor the position.
Challenging the validity of a will entails an application to the court to pronounce against the will 'in solemn form'. It's a contentious probate action, and not subject to any statutory limitation period in which to bring a claim.
It's preferable to bring the claim before a Grant of Representation has been obtained, because the claimant is usually someone who is seeking an entitlement to an estate under an earlier will or the rules of intestacy. As such, it's important to ensure a claim isn’t being brought against an estate which has already been administered, because if estate assets have already been distributed, the remaining value against which a court could make an order in favour of a claimant could be limited.
A caveat is therefore more appropriate here as it effectively halts the administration of an estate by preventing a grant from being issued without notice to the ‘caveator’. This lasts for six months but can be renewed.
Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides that all causes of action against a deceased person will survive them and can be brought against their estate. This includes actions founded on simple contracts, and allows a beneficiary or creditor to bring a claim against a deceased’s estate for payment of a sum due.
Section 5 of the Limitation Act 1980 provides that a claim must be brought within six years of the date on which the cause of action accrued. This will be the date on which the debt became payable, and may vary; for example, time may run from the date of death or the date on which repayment of the debt was first demanded. It's therefore sensible to check the terms of any contract into which the deceased entered with the claimant, as this should inform the position here.
The personal representatives of a deceased person may also give notice of their intentions to administer an estate by advertising this in the London Gazette and an appropriate newspaper of local circulation. Section 27 of the Trustee Act 1925 would then dictate that any beneficiary or creditor with an interest in a debt owed will only have two months from this date to bring a claim. Once this has expired, the claimant can still pursue their interest into the hands of a beneficiary, but the personal representatives and estate will be protected from further liability.
A claim against a negligent solicitor or other professional, for example due to poor drafting of a will or a mismanagement of an estate’s administration, can be brought on the basis of a tort (civil wrong) or a contract. In both instances, a claim must be brought within six years of the date on which the cause of action accrued, as provided by sections 2 and 5 of the Limitation Act 1980. This is either the moment when the contract was first breached, or when the duty, breach and loss required for a tort to be established can all be demonstrated.
Furthermore, if a claimant relies on a tortious cause of action, section 14A of the Limitation Act 1980 applies where they do not know of the negligent act at the time the cause of action accrued to them. In this instance, the time limit for bringing a claim can be extended to three years from the date when the claimant knew or ought reasonably to have known:
Section 14A may therefore grant a claimant more time to bring a claim if they have only become aware of the negligent act when the primary limitation period of six years is close to expiring.
However, section 14B of the Act serves as a ‘longstop’ limitation period, imposing an overriding 15 year time limit from the date of the negligent act for bringing a claim, irrespective of whether or not the claimant is aware of the cause of action which has accrued to them. This can be problematic should it transpire that a will drafted over 15 years ago is incorrect or has been negligently drafted, as the claim would be deemed to have been extinguished and 'lost to the sands of time'.
When dealing with an estate against which any of the above claims are brought, a charity’s trustees must balance their duty to ensure that the charity receives any monies due to it, whilst weighing up the value of the legacy and the time, resources and costs that would be incurred through litigation to protect the legacy. As always, adverse publicity can also act as a deterrent to charities who are considering defending or bringing a claim. The Charity Commission expects trustees to consider legal action only after they have explored and ruled out any other ways of resolving the issues in dispute, including alternative dispute resolution and negotiations through written correspondence or by attending a mediation.
That said, charities should not be afraid to assert their rights to legacies and can take comfort from the fact that the Civil Procedure Rules allow charities to take a pragmatic and diplomatic approach to litigation. This can help avoid any perceptions that a charity had forced a case to go to court.
Should you or your charity have any questions or concerns regarding limitation periods to claims, please contact Hannah Brittain for further advice.
