McElroy v McElroy [2023] EWHC 109 (ch): Can delay be a valid defence in probate claims?

With certain types of claims, there are limitation periods which provide a time period within which a claim must be brought. This is usually a number of years from the date of the breach or the date when loss was realised. For example, a claim on a contract not made by deed has a limitation period of 6 years. There is no limitation period applicable to probate claims.

However, delay can be tried as a defence under the equitable doctrine of laches. Indeed, as demonstrated in McElroy, where the eventual result would be unconscionable to enforce, the doctrine of laches can provide a successful defence in probate claims in certain circumstances.

Doctrine of Laches

Failing to bring a claim within a reasonable timeframe can mean such a claim is barred by the equitable doctrine of laches. As the maxim of equity goes, ‘Equity aids the vigilant, not the negligent’. The doctrine is not a direct defence to a claim, rather, it is an equitable bar to the enforcement of equitable relief.

Mere delay, in and of itself, is not enough for successfully invoking the doctrine of laches. As per the Lindsay Petroleum Co v Hurd (1874) L. R. 5 P.C. 221, ‘two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval’. Thus, in cases where there is a long and unjustified delay, during which the defendant has altered their position, in consequence of which the enforcement of the remedy would be unjust, the defence of laches is likely to be successful, as was the case in McElroy.

The party asserting laches has the burden on properly pleading the defence.

McElroy v McElroy: background

Ray McElroy died in 2011 whilst working in South Africa, less than 6 months after marrying his wife Lynne, and before he had executed his new will. Lynne obtained an English grant of administration in April 2012, on the basis that Ray died intestate.

Ray had executed an earlier will in 2011 when he was living in Australia. This will left his estate to his brother, Paul. Under both Australian and English law his marriage to Lynne revoked that will leaving him intestate, but not so under the law of Scotland, where he had lived, in Edinburgh, since 2005.

Additionally, Paul received half of the Ray’s employers’ life assurance scheme, which paid out over £170,000.00 to him.

Paul brought proceedings against Lynne in 2021, claiming that Ray’s original will had not been revoked as he was domiciled in Scotland at the date of his marriage. The end result, if Paul were successful, would see Ray’s estate pass to his brother. Lynne would only receive a small proportion of the ‘moveable’ estate, since Scotland has no equivalent to the Inheritance Act 1975.

Lynne, disputed whether Ray had ever lost his English domicile, and also raised a defence of laches.

The trial was on the preliminary issue of whether the claim was barred by laches.

Laches as a defence in probate claims

McElroy provided a chance for a review of authorities to date concerning the application of laches specifically to probate claims.

It was reiterated that, as per Mohan v Broughton [1899], where the only purpose of a probate claim was to establish a consequential follow-up action to recover assets and that, equitable, claim would be barred by laches, the probate claim could properly be dismissed.

In McElroy, HHJ Williams concluded, therefore, that a probate claim may be dismissed by laches where:

• laches is fully pleaded as a defence and responded to;
• the distribution of the estate was completed some time ago; and
• the purpose of proceedings was to enable the eventual recovery of assets, an equitable remedy, and such recovery was ‘bound to fail’.

In connection with the third, it was emphasised that probate proceedings must be conducted in CPR and actively managed by the courts. In furtherance of the overriding objective, to allow Paul’s claim would ‘serve no useful purpose’, rather, it ‘would simply expose the parties to significant expense for no discernible benefit’.  

Whilst the foregoing provides the general approach, In McElroy, the fact pattern was particularly amenable to a successful laches defence. It was found that Paul had agreed to forego his right to Ray’s estate after receiving the life assurance pay-out. Additionally, Paul had concealed his intentions to investigate the will from Lynne until 2018, and kept his right to inherit from his then wife in 2012 during divorce proceedings.

Overall, it was determined that the prejudice caused by the delay was significant to Lynne, whereas that to Paul was much less severe. Lynne would have no prospect of a 1975 Act claim, had lost the chance to get a larger share of the life assurance policy and Ray’s estate had allowed her to ‘rebuild her life around the inheritance she received’. On the other hand, Paul had already received a substantial payment and was only losing the chance to claim on his brother’s estate after a long delay which he had caused. Furthermore, if assets were recovered then Paul’s ex-wife would be able entitled to re-open divorce proceedings for non-disclosure.

Teachings

Claimants should act promptly and transparently. In McElroy, it was Paul that had caused the unjustified delay which heavily prejudiced Lynne. Moreover, Paul had deliberately concealed his claim both from the Lynne and from his former wife. Paul can hardly have been said to have come to such claim with ‘clean hands’.

Defendants must fully plead the defence of laches, as was achieved here, though, as stated, such stark facts allowed such a defence to succeed.

If you have any questions in connection to this article, please do not hesitate to contact one of our Expert Contentious Probate Solicitors.

Article written by Oliver Clark – Trainee Solicitor