James v Scudamore [2023] - using laches for will validity claims

What are the time limits for will validity claims? Laura Abbott, Principal Associate at Rothley Law, looks at the recent case of Scudamore & Ors [2023] EWHC 996 (Ch) and explains what laches is.

What are the time limits for will validity claims?

If a person is concerned that will may be invalid, there is no formal time limit within which a claim may be brought.

This is unlike a claim for reasonable financial provision from an estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (‘1975 Act’). These claims need to be brought within six months of the date of the grant of representation. In certain circumstances, an application can be brought to bring a claim out of time, but that is an extra hurdle to have to jump through and an applicant will only be successful if the claim is meritorious and if they were not aware of this time limit.

However, if a person wishes to challenge the validity of a will it is recommended to act quickly for the following reasons:

If the executor obtains probate in the estate, they will have access to the estate which may then be distributed/dissipated making it harder to recover assets even if the will validity challenge is successful.
Key evidence may be lost over time, for example, if solicitors were involved in the preparation of the will their file relating to it will be crucial for the court to consider, but may be routinely destroyed post death and in the absence of a contemporaneous challenge meaning it is no longer available to support a claim.
Witness evidence may no longer be available due to death or incapacity, or it may be considered to be unreliable due to the passage of time and the courts accepting that human memory is fallible.
Laches (see below).

What is laches?

The literal meaning of laches is unreasonable or undue delay in asserting a legal right which prejudices the opponent. Laches operates to prevent a claim proceeding altogether.

This concept was recently considered in the context of a will validity claim in the case of James v Scudamore & Ors [2023] EWHC 996 (Ch). In this case the claim was struck out due to laches; that is, the court considered the claim could not proceed due to unreasonable delay.

James v Scudamore [2023]

The facts

The deceased, Ivor Percy James, died in 2010. The claimant was his son from his first marriage. The deceased made a will in 1998 giving a life interest to his second wife Christine, with the claimant benefitting on her death. However, the deceased then made a codicil in 2002 removing the claimant.

The arguments

The claimant sought some initial legal advice after the death of the deceased in 2013 but took no further steps at the time. He did not bring his claim until 2020, some 7 years later, and after Christine had died. His claim was that the codicil was not executed properly.

The outcome

As the claim was based on defective execution the evidence of the witnesses was crucial but one of the witnesses had also died by the time the claim was brought. The surviving witness was the mother of the claimant’s partner. Her evidence was therefore considered to be biased and unreliable as there were inconsistencies in it.

In respect of the arguments as to due execution, the judge concluded that the fact of a regular and completed attestation clause gave rise to the presumption that everything had been properly done, which could not be displaced without the “strongest evidence” (Wright v Rogers (1869) LR 1 PD 678) – such evidence not being available in this case.

The judge also considered previous case law which held that the doctrine of laches bars claims where it would be:

“practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.”

The delay was considered to be unjustified as the claimant had sought earlier legal advice. Christine had distributed the estate and had made a new will which she could not now change her mind in respect of as she had died, so she would effectively suffer detriment if he were now allowed to proceed.

The judge concluded:

“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.”

Summary

This case is a stark reminder to act quickly to challenge the validity of a will and the risks of inexplicable delay. With increasingly complex family structures, and more and more second marriages it may be tempting to wait and see what happens on the death of the surviving spouse but by this time it could be too late, as it was for the claimant in this case.

The only option could then be to try to pursue a 1975 Act claim. However, this requires the claimant to have a financial need and the claimant would be too late for such a claim against their parent’s estate due to the time limit (see above), and can sometimes be a non-starter if the step parent came into their life as an adult and never assumed any financial responsibility for them. Generally, it is considered there has to be ‘something more’ than average cordiality to the relationship to establish eligibility.

About the author

Laura Abbott is a Principal Associate at Rothley Law and is a member of the Society of Trust and Estate Practitioners (STEP).

Find out more

James v Scudamore & Ors [2023] EWHC 996 (Ch) (BAILII)

Inheritance (Provision for Family and Dependants) Act 1975 (Legislation)

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Publication date

9 October 2023

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.