Delays In Bringing A Probate Claim: Laches Win

It’s unusual to see the doctrine of laches arise in probate cases.

In case you’ve missed them - practitioners will be interested in two High Court decisions this year barring claims on the basis of laches.

By way of reminder, laches is an equitable doctrine by which it would be unjust to give a remedy because of delay. There is usually some requirement for detrimental reliance for laches. Equitable laches is relevant only to an underlying claim to equitable relief - a claim to revoke a probate or letters of administration is not itself a claim to equitable relief.

In the latest case1, Matthews HHJ draws a distinction between the probate doctrine of laches and the equitable doctrine of laches.

What’s the background?

The testator died in 2010 leaving a 1998 will, and a codicil made in 2002. The surviving spouse (T’s second wife Christine) was his sole beneficiary and she obtained the grant in July 2011. She died in February 2018.

Under the 1998 will, T gave Christine a life interest in the matrimonial home. The codicil replaced the life interest with an absolute interest.

T had two sons from his first marriage but no children from his second marriage. One of his sons was the claimant who initially took legal advice about the will and codicil in 2013. However, he did not start proceedings until September 2020 – more than a decade after T’s death.

He then challenged the validity of the codicil arguing that its execution did not comply with the Wills Act 1837.

The claim was defended on several grounds – including delay and the equitable doctrine of laches.

Laches and delay

Having considered several authorities on laches – going back way more than a century – Matthews HHJ summarised how laches can operate: “… acquiescence or delay leading to a change in position making it unconscionable to assert a legal right thereafter”.

In the circumstances, the claimant son was “barred by what I have called the probate doctrine of laches from bringing this claim”. By this, he meant laches itself as a bar to proceedings in the Probate Court where, for instance, distribution has already occurred; whereas the equitable doctrine of laches is relevant to an underlying claim to relief in equity.

Here, T’s son knew what the position was, and though he instructed solicitors to investigate his claim, he did nothing. In the meantime, “Christine 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”.

The interests of justice had also suffered because of the loss of “best evidence” and potentially relevant documentation.

Matthews HHJ clarified that if he was wrong about the probate doctrine of laches, the equitable doctrine of laches would equally apply to bar the underlying intended claim – ie a claim to have recovered what had already been distributed to Christine’s beneficiaries under her will.

An earlier ruling on the equitable doctrine of laches was handed down this year in Re McElroy [2023] EWHC 109. The court dismissed a claim to revoke letters of administration, enable the claimant to obtain a grant and then seek to recover estate assets received many years previously by the estate beneficiary.

There was a very significant delay on the claimant’s part (more than 10 years and without good reason). The defendant successfully defended the claim on the basis of laches.

The court determined that the intended recovery claim was bound to fail. It would be unconscionable for the claimant to recover the estate assets – it would cause substantial prejudice to the beneficiary.

Key takeaway

It could be a long time until a further ruling on the probate doctrine of laches is handed down. However, the latest ruling clarifies and potentially widens the availability of the doctrine of laches in the context of contested wills and probate claims.

1James v Scudamore & Ors [2023] EWHC 996


Posted on 14.08.23