08 February 2024


Before challenging the validity of a will, many factors need to be considered. However, the recent decision in James v Scudamore [2023] EWHC 996 (Ch) highlights the importance of prompt action, seeking legal advice, and avoiding delays in bringing a claim. In this case, the claimant waited several years to initiate proceedings after obtaining legal advice. This resulted in the court dismissing the case for unjustified delay. This is the first modern case that recognises laches in a probate claim, where individuals fail to promptly assert their rights. It holds particular significance as claims contesting a will usually have no time limit to be started.

The Facts

In 2010, Ivor Percy James died leaving a will and a codicil. Christine, the deceased’s second wife, subsequently obtained a grant of probate and administered the estate in 2011. The claimant is the son of the deceased from his first marriage. He sought legal advice in 2013 in relation to the codicil’s validity. The claimant sought the codicil’s revocation because he alleged it had not been correctly executed. Indeed, the claimant argued, the witnesses had signed the codicil before his father, and they did so on a different date to that stated on its face. To be valid, the witnesses must both be present when the testator signs the codicil, and the testator must also be present when each of the witness signs. The claimant brought proceedings 7 years later challenging the validity of the codicil in 2020. However, Christine, and one of the attesting witnesses had died by that time. The only surviving attesting witness was the claimant’s former partner’s mother.

The codicil replaced the life interest given to Christine and the remainder over to the sons in the matrimonial home with an absolute interest. When Christine died, she left a will giving 70% of her residuary estate to her sister, Diana, and 30% to the claimant’s children. Under Christine’s will, the claimant’s children would receive around £158,000. However, if Ivor James’ codicil was found to be invalid and his estate administered on that basis, the claimant would have received £197,500 instead. In other words, the claimant and his children would be losing out if the codicil stood.

The Decision of the High Court

The High Court’s decision was handed down by HHJ Matthews who barred the claim because of the claimant’s delay.

He held that:

  1. where a person has a right to intervene in probate proceedings, is aware of those proceedings and of that right but deliberately abstains from joining them, they are bound by the result;
  2. if the delay is unjustified, the claim will be barred;
  3. if the delay is justified, it will not be sufficient to bar the claim; and
  4. where the delay has led to others’ detrimental reliance the claim will also be barred.

In this claim, the claimant could not explain why it took him 7 years to bring the claim and why he took no further steps after instructing solicitors regarding the codicil’s validity. In administering the estate, Christine had relied on the claimant’s inaction. Furthermore, key witnesses had died, and documents had been destroyed in the meantime which would have significantly assisted the court. Therefore, HHJ Matthews held that due to the doctrine of laches, the claimant’s claim was barred. In those circumstances, it would be unjust to allow the claim.


  • Probate actions such as challenging a will, do not have a limitation period. However, this decision serves as a warning to those waiting until perhaps more favourable circumstances before initiating proceedings. The recognition of laches as a bar to bringing a claim in this case highlights the importance of acting early and seeking legal advice promptly to avoid unjustified delays.
  • Executors defending against such challenges may be able to rely on delay as a defence, emphasising the significance of acting swiftly.
  • In addition, the courts acknowledge the vulnerability of memory particularly where a long period of time has elapsed since the relevant events occurred. In this case, the judgement exposed a concocted story surrounding the execution of a codicil, resulting in the rejection of the surviving attesting witness’s evidence unless corroborated by an independent source. The judge, while weighing all evidence, remained mindful of the fragility of memory and the relative objectivity of documents. It is therefore crucial to start proceedings promptly to counteract memory’s unreliability and ensure the integrity of witness evidence.

If you have any questions in relation to the issues raised above, please contact the author Justin Briggs or your usual member of our Disputes Resolution team. This update was written with assistance from Simon Lellouche.

Key contact

Justin Briggs

Justin Briggs Partner

  • Trust Disputes
  • Tax Negligence
  • Pension Disputes

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