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James v Scudamore [2023] EWHC 996 (Ch)

Matthew Mills, instructed by Birkett Long LLP, appeared for the successful Third Defendant in James v Scudamore [2023] EWHC 996 (Ch).

The decision is the leading authority on when a probate claim will be barred by delay. At paragraph [197], HHJ Matthews summarised the key legal principles as follows:

  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.
  4. Similarly where the delay has led to others’ detrimental reliance on the inaction, such as distribution of the estate.


This case concerned a codicil which was executed by the deceased on Boxing Day 2002 and which benefitted the deceased’s wife. The deceased died in 2010. In 2013, the claimant, who is one of the deceased’s sons, alleged that the codicil was not properly executed. However, he did not issue a claim until 2020, after the deceased’s wife and one of the attesting witnesses had died. The claimant relied on the evidence of the surviving witness, who was the mother of his ex-partner.

The judge held that the claim was barred by “the probate doctrine of laches”. Alternatively, the underlying claim to recover the assets from the beneficiaries would be barred by the equitable doctrine of laches, and therefore the probate claim ought to be struck out as utterly academic and without purpose.

In the event that he was wrong on those issues, the judge also held that “the claimant, [his] former partner and her mother have concocted a story about how the codicil was executed”. Accordingly, the judge found that the codicil was properly executed.

You can access a copy of the judgment here.