Following the death of the claimant’s father his will, to which a codicil was attached, was proved in 2011. In 2013 the claimant consulted solicitors to investigate the possible invalidity of the codicil but it was not until 2020 that he brought proceedings disputing its validity. In those proceedings the claimant contended that the codicil was invalid for non-compliance with section 9 of the Wills Act 1837 in a number of respects, including that the witnesses had signed the codicil before the testator had done so, and had signed on a different date to that stated on the face of the codicil. In addition to disputing the substance of the claim the first defendant contended that the claim was barred by reason of laches given the unjustified delay in bringing the proceedings.
On the claim—
Held, claim dismissed. The doctrine of laches could apply in probate law to bar a claim, the following propositions being warranted in light of the authorities: (i) where a person having a right to intervene in existing probate proceedings was aware of those proceedings and of that right, but deliberately abstained from joining in them, they were bound by the result; (ii) explicable delay, even when coupled with taking a legacy under a will proved in common form, was not generally enough to bar a claimant from taking probate proceedings; (iii) unjustified delay, possibly on its own, and certainly when coupled with acts amounting to waiver of the claimant's right, would bar the claim; (iv) that the claim would also be barred where the delay had led to others’ detrimental reliance on the inaction, such as distribution of the estate. Applying those principles to the facts of the case, the claimant was barred by the probate doctrine of laches from bringing his claim. In the alternative, the equitable doctrine of laches would, for much the same reasons, equally apply to bar the underlying intended claim rendering the claim to set aside the codicil academic and without purpose (paras 196, 197, 202, 203, 205).
Per curiam. (i) The amendments of section 9 of the Wills Act 1837 made by the Administration of Justice Act 1982 have not altered the requirement that the testator's signature must be on the testamentary paper before a witness can attest to it. The witnesses must be present when the testator signs or acknowledges their signature and the testator must be present when each of the witnesses signs or acknowledges their signature (paras 101–104).
(ii) The established presumption of due execution of a will extends to a copy or photocopy so that, where probate is granted of a copy or photocopy of an original will (necessarily limited until the original is found), it will be subject to the same presumptions as would apply to the original. Where the presumption applies, it will be presumed that the signature (or acknowledgment of the signature) of the testator and the attestation of the witnesses have taken place in the correct order (paras 112, 115).
Amy Berry (instructed by Coodes LLP, Truro) for the claimant.
James Kirby (instructed by Nalders LLP, Camborne) for the first defendant.
Matthew Mills (instructed by Birkett Long LLP, Colchester) for the third defendant.
The second, fourth, fifth and sixth defendants did not appear and were not represented.