Essex law firm, Birkett Long, acted for one of the successful defendants in the James v Scudamore case, which has become a guiding case when it comes to contesting a will. One of the grounds of defence used in the probate claim was delay.

The James v Scudamore case, which took place in the High Court of Justice in Bristol has been dubbed the ‘leading authority’ on when a probate case can be barred by delay. The claimant sought a probate claim on the grounds of invalidity but brought the claim nearly 10 years after testator’s death.

This case involves the estate of Ivor Percy James who died in 2010. He left a will, made in 1998, and a codicil (an additional legal document that alters your will), 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 that the witnesses had signed the codicil before the deceased and/or that the signature on the codicil was not the deceased’s.

… an unreasonable delay in making a legal claim

Thanks to the strategic legal advice from Birkett Long, the court held that the claim was barred by the ‘probate doctrine of laches’. This is the first modern case where the court has recognised the existence of this doctrine. 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. Judge HHJ 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.

This case confirms that probate claims can be time-barred where the claimant delays bringing their claim without a valid reason.