James v Scudamore & ors [2023] WTLR 961

Analysis

The deceased died on 21 June 2010. His will, dated 6 March 1998, gave a life interest in the matrimonial home to his second wife, with remainders to the claimant and his brother, who were children of the deceased’s first marriage. A codicil, dated 26 December 2002, replaced the life interest with an absolute gift to the second wife. The deceased’s second wife obtained probate, relying on a copy of the codicil as the original could not be found, and administered the estate. The second wife made a will by which 70% of her residuary estate went to her sister, and 30% to the claimant’s three children, appointing her niece (the first defendant) as executrix. In 2013, the claimant instructed solicitors to investigate the validity of the codicil, but no action was taken. On 29 September 2020, the claimant issued a probate claim claiming that the codicil was invalid for non-compliance with the Wills Act 1837 because:

1. (i) the witnesses signed the will before the deceased did, and on a different date than stated on its face; and
2. (ii) the deceased’s second wife had completed the deceased’s signature as he was physically unable to.

The first defendant defended the claim, principally on the basis that the codicil was properly executed and by reason of laches. Only one of the two attesting witnesses (the grandmother of the claimant’s children) was alive and gave evidence as to the events surrounding the execution.

Held:

Claim dismissed:

1. (1) The deceased had signed the codicil first in the presence of the witnesses, who had then signed in his and each other’s presence. The grandmother’s evidence about the date of execution had been concocted with the claimant and her daughter, any ‘kerfuffle’ at the time of execution was a recent invention, and the grandmother’s evidence that she and the other witness signed before the deceased was made up. It was not accepted that the grandmother had recognised the second wife’s handwriting in the deceased’s signature. It was clear on the evidence that the second wife had cared greatly for the claimant’s children and had treated them as her own grandchildren. She intended them to benefit under her will, but had not promised before or after the deceased’s death that the whole of the house or its value would pass to them.
2. (2) The 1837 Act as amended did not impose a requirement that a valid will bear a date, let alone the correct date of execution, nor did it expressly prescribe the order in which testator and witnesses should sign. The attesting witnesses do not have to be present at the same time when each is attesting and signing (or acknowledging). The witnesses must both be present when the testator signs or acknowledges, and the testator must be present when each of the witnesses signs or acknowledges his or her signature. No form of attestation was actually necessary. The meaning of ‘attest’ was that one attested to some perceptible event, usually but not always seen. The event to be attested was either the testator’s signature of the will, or his/her acknowledgment of that signature. There were thus either two separate actions, or alternatively just one, involved for the witness:
   1. (a) The first alternative consisted of, first, attesting, or bearing witness to, either:
      1. (i) the act of signature itself; or
      2. (ii) the acknowledgment of the existing signature that was witnessed.
   2. The second part of the first alternative involved the act of signature by the witness, as a formal acknowledgment of the attestation that has just taken place.
   3. (b) The second alternative consisted of the acknowledgement by the witness of an earlier signature by that witness on the will. The acknowledgment of the earlier signature took the place and function of an attestation of the testator’s signature. The amendments to the 1837 Act made in 1982 did not change the requirement that the testator’s signature must be on the testamentary paper before a witness can attest.
3. (3) There was no good reason why if probate of a copy of a will was granted (and necessarily limited until the original was found) that the copy should not be subject to the same presumption that everything was properly done as was the case where probate is granted to the original.
4. (4) The applicable principles of laches and delay are that:
   1. (i) 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. (ii) 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. (iii) unjustified delay, possibly on its own and certainly when coupled with acts amounting to waiver of the claimant’s right, will bar the claim; and
   4. (iv) similarly the claim will be barred where the delay has led to others’ detrimental reliance on the inaction, such as distribution of the estate.
5. Whether the propositions at (iii) and (iv) should be referred to as a probate version of the doctrine of laches, or by some other name, did not much matter.
6. (5) Applying the principles, the claimant was barred by the probate doctrine of laches from bringing the claim. He knew what the position was, but after instructing solicitors did nothing. The second wife thereafter acted to her potential detriment by making a fresh will administering the estate. The interests of justice had suffered from the loss of the best evidence of the second wife and the other attesting witness, better evidence from the grandmother and loss of documents from the second wife’s house.
7. (6) Even if wrong on the probate doctrine of laches, the equitable doctrine of laches equally apply to bar the underlying intended claim to recover from the estate of the deceased’s second wife.
8. (7) Even if wrong on that, and the claimant was entitled to bring the claim, the evidence was not sufficient to disturb the operation of the presumption of regular execution.

JUDGMENT HHJ PAUL MATTHEWS: Introduction [1] This is my judgment on the trial of a probate claim, commenced by claim form issued on 29 September 2020. The claimant is one of the two sons by his first marriage of the deceased, Ivor Percy James, who died on 21 June 2010. His will dated 6 March …

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