Don’t Delay When Bringing A Probate Claim: McElroy v McElroy [2023] EWHC 109 (Ch)

This recent case considers circumstances in which a delayed probate action may be challenged.

In this case, the Claimant (the Deceased’s brother) sought to establish that the Grant of Letters of Administration made in the Deceased’s estate in 2012 had been incorrectly issued to the Deceased’s wife, L. L obtained the Letters of Administration on the basis that the Deceased did not have a valid will at the time of his death. The estate therefore fell to the Rules of Intestacy and the entire estate passed to her.

The Claim

The Deceased died in February 2011.  The letters of administration were obtained in April 2012 and L distributed the estate accordingly.

However, in 2021, the Claimant brought a claim to have the Letters of Administration revoked on the grounds that the Deceased had not, in fact, died intestate. The Claimant claimed that the Deceased made a will in 2002 prior to the Deceased’s marriage to L, leaving everything to the Claimant. The basis of this claim was that the Deceased was domiciled in Scotland when he passed away therefore Scottish law dictated the way in which his estate should be dealt with. Unlike in English law, a will is not automatically revoked on marriage in Scotland and the Claimant therefore claimed the 2002 Will was still valid. The Claimant claimed that the Letters of Administration should  be revoked as they were made on false depositions that the Deceased died domiciled in England and Wales.

L raised a defence of laches in response. Laches is an equitable defence which is used where the defendant wishes to argue that the claimant is no longer entitled to pursue a claim because of the delay in asserting their claim. L claimed that laches applied in the circumstances due to the 10 years which passed between the Deceased’s death and the issuing of the claim. It was also L’s argument that, as there is no equivalent to the Inheritance (Provision for Families and Dependants) Act 1975 in Scottish law, had the claimant been successful, L would be left with virtually nothing from her husband’s estate.

The Judge ordered a trial as to whether the claim was time barred by virtue of laches, acquiescence and/or issue estoppel as a preliminary issue as, if proven, the probate claim would be academic only.

Trial of the Preliminary Issue

There are differing views as to whether laches can be used as a defence to a probate claim, however, in this case, the judge concluded that laches was an appropriate defence in the circumstances. The facts relevant to this decision are as follows:

• The Claimant was aware of the existence of the 2002 Will at the date of the Deceased’s death.  L was advised in 2011 that the 2002 Will was invalid and told the Claimant of this shortly afterwards.  The Claimant did not challenge this assertion until 2018;
  
  
• The Claimant did not declare his potential interest in the estate during his divorce in 2012 (meaning that if the Claimant was able to recover the estate from L, he would have effectively undermined the outcome of the divorce proceedings and the court should avoid contributing to that);
  
  
• Delay had been caused by the Claimant’s actions.  The Judge found that the Claimant had engaged in extensive lengthy investigations to gather evidence about the 2002 Will when he could have asked L for a copy of it at any time;
  
  
• That two years passed between the Claimant obtaining a copy of the 2002 Will and providing a formal letter of claim, and a further three years passed before formally serving the claim;
  
  
• L had not materially contributed to or caused the delay in the Claimant commencing the claim;
  
  
• The estate was distributed in 2012. L would suffer significant financial prejudice as a result of the Claimant delaying his claim to effectively recover the estate from her if his claim was ultimately successful and therefore it would be unconscionable to allow him to succeed. 

The court found that, in light of the above and in the interests of dealing with cases justly and proportionately, the defence of laches had been successfully made and the claim was dismissed.

This case is notable as there are few cases where a defence of laches has been successful. The case raises the importance of ensuring that you do not cause a delay in either bringing a claim or a claim being brought and that you do not take any steps which might prejudice your position. For executors and beneficiaries, it demonstrates the importance of communicating any claims that you may wish to bring from the outset.