bristol civil justice centre

Probate doctrine of laches sees validity challenge time-barred in landmark case

A recent case saw the High Court bar a probate claim on the grounds of the probate doctrine of laches in what has been described as the first modern case of its kind.

The judgment in James v Scudamore & Ors [2023] EWHC 996 (Ch), which was handed down last month, concerns the estate of Ivor Percy James who died in 2010. He left a will, made in 1998, and a codicil, made in 2002. His second wife, Christine, obtained a Grant of Probate in July 2011, inheriting the estate.

In 2013, one of Ivor’s sons from his first marriage saw solicitors to advise him on the validity of the codicil but took no further action.

After Christine died in 2018, the claimant (Ivor’s son) challenged the validity of the codicil to the will of his late father was invalid because it failed to comply with the requirements of the Wills Act 1837.

It was claimed – some 10 years after the testator’s death – that the witnesses had signed the codicil before the deceased and/or that the signature on the codicil was not the deceased’s.

One of the defences put forward was that of the doctrine of laches, which the court concurred with. Laches refers to an unreasonable delay in making a legal claim that can be viewed as prejudicing the opposing party.

In this case, the claimant had taken legal advice in 2013 but had not made his claim until 2020. The interests of justice had suffered as relevant documents had been destroyed.

This seven-year delay was found by the judge to not be justified. His Honour Justice Paul Matthews summarised it would be unfair to grant the claimant relief because, following his failure to act on legal advice taken in 2013, Christine had administered and distributed Ivor’s estate. She had made a new will and had died. Had the claim been brought sooner, live evidence would have been available at any trial, memories would have been clearer and the relevant documents would still have been in existence. Matthews J said:

“I am entirely satisfied […] that in the circumstances the claimant is barred by what I have called the probate doctrine of laches from bringing this claim.

The claimant knew what the position was, but after instructing solicitors to investigate his claim, did nothing. Christine thereafter acted to her potential detriment on this inaction by making a fresh will partly in favour of the claimant’s children, and by administering and distributing her late husband’s estate.

Matthews J added:

“If I were wrong about the probate doctrine of laches, then, in my judgment, the equitable doctrine of laches would, for much the same reasons, equally apply to bar the [claim].”

The first and third defendants were represented by James Kirby and Matthew Mills, instructed by Nalders LLP and Birkett Long LLP respectively.

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