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Probate claims can be barred by delay: James Kirby appears for successful defendant in James v Scudamore

4th May 2023

James Kirby acted for the First Defendant in James v Scudamore [2023] EWHC 996 (Ch), in which a claim to revoke a grant of probate was defeated by what the claimant’s delay in issuing proceedings. The case is legally significant because it establishes the existence of a “probate doctrine of laches”, under which a claim can be barred by inequitable delay.


The claim was for the revocation of probate of a codicil to a will. The claimant had threatened to bring the claim in 2013, but then waited until 2020 to issue proceedings. By that time, the main beneficiary (who had also been present when the codicil was signed) and one of the attesting witnesses had died, and the main beneficiary had left part of her estate to the claimant’s children by will. The court held that these circumstances resulted in the barring of the claim.


The court went on to find that even if the claim had not been barred by delay, it would have failed on the merits as a result of the presumption of due execution, and that in any event the evidence showed that the codicil had been duly executed. The claimant’s allegation that it had not been duly executed was based on a story concocted by the surviving attesting witness and her daughter.


The judgment is available at

James Kirby James Kirby Call 2017
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