Making your mind up! The court's new dim view of delays

Birkett Long recently acted for the successful third defendant in the matter of James v Scudamore and others ((2023) EWHC 996 (Ch)).

The claimant contended that 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 that the witnesses had signed the codicil before the deceased and/or that the signature on the codicil was not the deceased’s.

The Probate Doctrine of Laches

The Judge, HHJ Matthews, held that the claimant was barred by the “probate doctrine of laches” from bringing the claim. Laches refers to an unreasonable delay in making a legal claim that can be viewed as prejudicing the opposing party. In this matter, the claimant had taken legal advice in 2013 but had not commenced his claim until 2020.

This seven-year delay was found by the Judge not to be justified and the lack of action had led to other parties acting to their detriment. The interests of justice also suffered as relevant documents had been destroyed.

However, whether a claim will be barred is not solely based on the number of years between awareness of the potential to bring a claim and a claimant taking action, with HHJ Matthews summarising that explicable delay will generally not be enough to bar a claimant from taking probate proceedings.

Strategic Legal Advice from Birkett Long

This success was a joint team effort for the Inheritance Disputes team with Lisa Cox, Associate, Kay Baker, Senior Associate, Amanda Smallcombe, Partner and Head of Inheritance Disputes Team, and Matthew Mills, Radcliffe Chambers, advising on the matter.

Birkett Long added value as they adopted a strategic approach to minimise our client’s exposure to costs and managed to recover some of our client’s costs on an indemnity basis.

If you are a potential claimant or defendant, receiving advice on the merits of a claim is important but this decision shows the impact that strategic legal advice can have on the success of a claim and the cost implications.

If you have a potential claim to discuss you can contact me via email lisa.cox@birkettlong.co.uk.