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What is meant by 'laches', and when will delay stop you from challenging a will?

View profile for Leah Merrifield
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What is laches?
Laches operates as a defence to a claim, and it is often understood to mean ‘delay’. In fact, laches is more than simply delay. The recent case of James v Scudamore [2023] EWHC 996 (Ch) sets out four propositions that form the probate version of the doctrine of laches:

  1. Where a person having a right to intervene in existing probate proceedings is aware of those proceedings and of that right, but deliberately abstains from joining in them, he or she is bound by the result;
  2. Explicable delay, even when coupled with taking a legacy under a will proved in common form, is not generally enough to bar a claimant from taking probate proceedings;
  3. But unjustified delay, possibly on its own, and certainly when coupled with acts amounting to waiver of the claimant’s right, will bar the claim; and
  4. Similarly where the delay has led to others’ detrimental reliance on the inaction, such as distribution of the estate.

Propositions 3 and 4 may be referred to as a probate version of the doctrine of laches. The probate version of the doctrine of laches would apply, for example, in a claim challenging the validity of a will.

When will delay stop you from challenging a will?

Laches requires unjustified delay which may or may not include the claimant waiving their right to bring a claim. Laches will also act as a defence where others have relied on the claimant’s inaction to their detriment. The most common example of this is likely to be where the estate has already been distributed, and beneficiaries have used their inheritance.

The relevant factors in James v Scudamore, which led to the claim being barred by laches, were:

  1. The Claimant had taken legal advice and instructed solicitors to investigate his claim in 2013 (seven years before his claim was issued);
  2. The deceased’s second wife had acted to her detriment by making a will that benefited the claimant’s children, and by distributing her late husband’s estate; and
  3. The interests of justice had suffered as the best evidence had been lost through the death of witnesses, the destruction of documents and the effects of time on the memory of those who were able to give evidence.

If you are concerned about the validity of a will, or if you are concerned about a claim being brought against you, then please contact us and we will be happy to assist you.