Is Laches A Defence To Delay In Litigating A Probate Dispute?

McElroy v McElroy (Re Estate of Ray James McElroy) [2023} EWHC 109 (Ch)

Background

In the case, McElroy v McElroy, Ray McElroy died unexpectedly on 18 February 2011, 5 months after marrying his wife, Lynne. Ray had given instructions for a new Will, only a month before he died, leaving his estate to his wife, but he did not sign the Will before he was called back to his job at sea.

Ray had executed an earlier Will in 2011, whilst living in Australia, which left his estate to his brother, Paul. Under Australian and English law his marriage to Lynne revoked that Will, so she obtained an English grant of administration on the basis that Ray died intestate and in April 2012, transferred the estate into her own name.

In 2021 Paul issued probate proceedings against Lynne claiming that Ray had been domiciled in Scotland as he had been living there when he died and when he married Lynne. Such that under Scottish Law the Will was not revoked, and he should inherit the entire estate.

If Paul’s claim was successful Lynne would have no recourse as the surviving spouse under the Inheritance Act 1975 as this Act is not applicable under Scottish Law.

Laches as a defence

Meaning of laches

A defendant who invokes the equitable doctrine of laches is asserting that the claimant has delayed in asserting its rights, and, because of this delay, is no longer entitled to bring an equitable claim. Failure to assert one’s rights in a timely manner can result in claims being barred by laches: it is a maxim of equity that, “Equity aids the vigilant, not the negligent.”

However, delay alone is not enough to prevent a claimant from obtaining relief. The consequence of the delay must be that it would be unfair for the Court to give relief, usually because the defendant has changed its position because of the delay.

The party asserting laches has the burden of proving that it is applicable. Laches is distinguishable from the statute of limitation, which prevents a party from asserting claims after the designated limitations period has expired.

In this case, Lynne raised a defence of laches, for the claim to be struck out for the 10-year delay between Ray’s death and the issue of proceedings.

It was considered if laches could be a defence to dismiss a probate claim.

The judge concluded that a probate claim may be dismissed for laches where:

Here the Judge found on consideration of the facts the prejudice against Lynne was significant. She would only be entitled to a small share of Ray’s estate, with no prospect of a 1975 Inheritance Act claim. She had lost the opportunity to seek a larger share of the Death in Service benefit, of which Paul had received half and she had rebuilt her life around the inheritance she had received. It was also found that her conduct had not contributed to the delay in bringing the claim.

By contrast, the prejudice against Paul was less significant. He would lose the opportunity of pursuing his claim to recover his brother’s estate from Lynne, but he had already received half of the Death in Service payment which he would not otherwise have received, and if any assets were recovered then his wife would be entitled to re-open their divorce settlement for material non-disclosure.

It was held that:

The judge concluded that considering all the circumstances, it would be unconscionable for Paul to recover estate assets from Lynne, and so the defence of laches was made out. Paul’s claim was dismissed.

Comment

It is known that there is no limitation period for probate claims as such, and laches does not apply directly. However, there are several ways a late claim can be challenged.

In this case, Paul claimed that it had taken him 5 years to obtain a copy of the Will, despite his requests for it to be provided to him. His reliance on this as a reason for the delay was not accepted by the Court in this instance. However, it should be borne in mind that if you find yourself in the position of defending such a claim it is paramount that transparency and disclosure are practised as early as possible. By doing so will make it harder for the claimant to justify any delay to their challenge.