James v Scudamore: Defending a probate claim on the ground of delay

The recent case of James v Scudamore is the leading authority on when a probate claim will be barred by delay. The key factors for the Court to consider are the claimant's knowledge of the facts to bring a claim, the length of any delay and the nature of any actions taken following the deceased's death (including distributing the estate). A defendant has the burden of proving that an imbalance of justice would result if the claimant is entitled to bring their claim.

Background facts of the case

Ivor Percy James died in 2010, leaving a will made in 1998 and a codicil made in 2002. His second wife, Christine, obtained a Grant of Probate in July 2011, and thereafter administered the estate.

In 2013, one of the deceased's sons from his first marriage instructed solicitors to advise him in relation to the validity of the deceased's codicil but took no further action. 

Christine died in 2018. In 2019, the claimant son placed Christine's personal representatives and other defendants on notice of his intention to challenge the validity of the codicil on the ground that it did not comply with the provisions of the Wills Act 1837. He issued a claim form in September 2020, more than 9 years after probate had been granted, seeking an order that the 2011 Grant be revoked and that a fresh grant be issued in relation to the will alone.

The outcome

The Judge was entirely satisfied that the probate claim was time-barred by operation of an equitable defence known as laches. The Court will allow a defendant to rely on laches where the claimant has delayed in bringing a claim and as a consequence, it would be unfair for the Court to grant relief.

In the context of the probate claim, the Judge referred to the rule as 'the probate doctrine of laches'. 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 the deceased's estate. She had made a new will and had died. The interests of justice had also suffered: had the claim been brought sooner, live evidence would have been available at any trial, memories would have been clearer and documentary evidence would still have been in existence.

The Judge further set out that if he was wrong in his conclusions about the probate claim, laches would, for many of the same reasons, apply to bar an underlying claim to recover assets from the beneficiaries of Christine's estate (which, if the codicil was found to be invalid, would have been distributed to the wrong people). On this basis, the probate claim should be struck out as it served no purpose.

Further still, supposing the claimant was entitled to bring his claim then the available evidence was not sufficient to disturb the presumption of regular execution. Even if that presumption were displaced, the Judge would still be satisfied that what happened on 26 December 2002 amounted to the proper execution of the codicil. The claim was therefore dismissed.

Points to note

This case confirms that probate claims can be time-barred where the claimant delays bringing their claim without good reason, providing an additional defence where personal representatives and beneficiaries have acted on the basis that a will is valid, or on the basis that the deceased did not leave a will. 

It follows a decision earlier this year, in Re McElroy [2023] EWHC 109 (Ch), where a probate claim (in this case to revoke letters of administration) was dismissed because the underlying equitable claim to recover estate assets as barred by laches. In that case, the Judge found "it would be wholly contrary to the overriding objective of saving expense and avoiding delay to permit the probate claim to continue in circumstances where it would serve no useful purpose."

Parties to probate claims must consider whether the reasons for any delay in bringing the claim are justified. If a defendant wishes to rely upon laches, they must show that it would be unfair for the claimant to be able to pursue their claim, for example where beneficiaries have relied upon the claimant's inaction to their detriment (e.g. by spending their inheritance), or where crucial evidence has been lost (e.g. because a will file has been destroyed or due to the death of a key witness).