1. Introduction
A recent English High Court case, James v Scudamore,[1] a decision of HHJ Paul Matthews, sitting as a judge of the High Court, poses the above question and answers it in the affirmative. This is rather unusual and for that reason the case deserves to be blogged.[2]
2. Facts
Ivor Percy James (‘Ivor’) died in 2010. He left a will made in 1998 and a codicil made in December 2002. The will gave a life interest in the matrimonial home to Ivor’s second wife, Christine, with remainder to his two sons by his first marriage to Dianne, Martyn and Raymond. The codicil changed this provision by giving the matrimonial home absolutely to Christine. Christine proved both the will and the codicil in 2011.
Christine died in 2018. By her will she appointed her niece, Lorraine, executor, who proved Christine’s will. Christine’s will left 30% of her estate to Martyn’s children and 70% to her (Christine’s) sister, Diana, Lorraine’s mother. However, Diana died six months after Christine. By her will she appointed her husband executor and named him her universal legatee. He is the third defendant in these proceedings. By chain of representation, Lorraine is now the personal representative of Ivor’s estate.
The attesting witnesses to the 2002 codicil were Dawn Buckley and her husband Noel Buckley. He died in 2017, so Dawn is the only surviving witness. Dawn is the mother of Dianne James, who is the former partner of Martyn and they together had the children to whom Christine left 30% of her estate.
In 2020 Martyn filed a claim in which he seeks revocation of the probate of Ivor’s will and codicil granted to Christine, and the grant of a fresh probate of the will alone. He alleges that the codicil is invalid because: (a) the witnesses attested it before Ivor signed it; (b) the witnesses signed on a different date than the one stated on the face of the codicil; (c) Christine gave all the instructions for the preparation of the codicil, and she completed Ivor’s signature since he was suffering from the after-effects of a stroke at the time. Lorraine denies that the codicil was not properly executed, and that the claim should be dismissed for laches. An earlier practice direction did not give permission for any expert evidence about the handwritten signatures to be adduced. However, a copy of the codicil was produced at trial.
The witnesses included Martyn, Dawn Buckley, Dianne James, and Lorraine.
In 2013 Martyn consulted solicitors about the possible invalidity of the codicil. After investigation and consultation with family members, Dawn in particular, the solicitors wrote to Christine that in their opinion the codicil was formally invalid. She wrote back to the solicitors with her account of the execution of the codicil and it complied with the instructions given by her and Ivor’s solicitors. Dawn disputed Christine’s account but Justice Matthews concluded that she and other family members did not tell the truth
3. Analysis and Judgment
3.1 Validity of Codicil
Having heard the testimony of the witnesses, Justice Matthews concluded that he did not trust the evidence of Martyn and would put no weight on it unless it was independently corroborated. He took a similar view of the testimony of Dawn Buckley, the grandmother of Martyn and Dianne’s children, stating that in his opinion she was telling him her part of a concocted story He also disbelieved the testimony of Dianne, Martyn’s former partner and the mother of their children. On the other hand, he accepted the evidence of Lorraine, as she was an intelligent and transparently honest witness.
Justice Matthews made an important point about the evidence of the witnesses regarding handwritten signatures. He stated that witnesses who are not experts cannot compare specimen signatures with disputed signatures. However, they can give evidence of the identity of a person, or familiarity with a signature since those are not regarded as expert opinion. He also found that Raymond had been estranged from Ivor for some time.
Justice Matthews concluded that the codicil was signed and attested properly and, having examined Ivor’s signature on the codicil, that it appeared to be in his hand and not in Christine’s hand. Then he considered the statutory requirements for execution of a testamentary document.[3] Although there have been suggestions in England that the 1982 amendments removed the concept of time sequencing of the signatures of the testator and witnesses, he opined that it is still the law that the testator’s signature must be on the will before a witness can attest. Then, applying the presumption omnia rite et solemniter esse acta,[4] he concluded that the codicil had been properly executed and attested.
3.2 A Probate Doctrine of Laches?
Justice Matthews then turned to the question whether there is a probate doctrine of laches – the main reason for this blog. We are all familiar with the doctrine of laches as an equitable doctrine, but it can serve to bar only a claim to equitable relief.[5] And a claim to revoke letters probate or letters of administration is not a claim to equitable relief.
3.2.1 Modern English Cases
Some modern English cases discussed by Justice Matthews note that equitable laches can come into play if the claimant seeks to revoke probate in order to pursue some underlying equitable claim that can be pursued only if the probate is revoked. In that case, if the equitable laches must bar that claim, the court will refuse the revocation.[6] On the other hand, if the claim is to revoke probate so that the claimant can contest the validity of the will, this is not an equitable claim, but it can be defeated for delay if it is sufficiently long.[7] Some courts have also suggested that if the plaintiff can achieve no real advantage from the proceeding, the court can hold it to be frivolous and vexatious and dismiss it.[8] Similarly, in Re Flynn[9] Slade J said:[10]
… the court will never strike out an action to revoke a grant of probate or letters of administration on the mere ground of delay in instituting it, unless it is satisfied that the claim is otherwise frivolous or vexatious or is for other reasons an abuse of the process of the court.
So also, in Re Langton’s Estate[11] Diplock LJ noted that in probate matters the High Court is the successor to the Prerogative Court of Canterbury and that the law developed in that court continues to apply unless changed by legislation or rules of court. Then he went on to say:[12]
… it was the practice of the Prerogative Court to permit any person claiming an interest in the estate of the deceased, whose rights could be affected by the grant applied for, to intervene in the action at any stage… As a corollary to this right of intervention, the Prerogative Court applied the rule that a person interested in the estate of the deceased who was in fact cognizant of a suit with respect to the validity of a will by which his interest was to his knowledge affected and who stood by and took no part in the suit was nevertheless bound by the decree pronouncing in favour of the will… This rule differs from the common law rule of estoppel per rem judicatam. It is peculiar to the probate jurisdiction of the court and is a rule of substantive law…
3.2.2 Cases from the Prerogative Courts
Since none of the modern cases definitively recognized a probate doctrine of laches, Justice Matthews turned to old cases decided in the Prerogative Courts, which had probate jurisdiction in relation to personalty until the creation of the Court of Probate in 1857,[13] when the Prerogative Courts were abolished, and their jurisdiction was transferred to the new court. The Supreme Court of Judicature Act 1873[14] abolished the Court of Probate and transferred its jurisdiction the High Court of Justice. While there were a number of subsequent statutory changes, [15] the jurisdiction of the High Court over probate continued and it continued to apply the law of probate as it used to be administered by the Prerogative Courts.[16]
In an article a few years ago I traced the history of the law of probate in England and explained how we inherited that law as administered by the Prerogative Courts in Canada. I also explained how that law survived the abolition of the Surrogate Courts in Ontario and the transfer of their jurisdiction to the Superior Court of Justice.[17] Thus, reference to the older Prerogative Court cases is legitimate.
3.2.3 Analysis
Justice Matthews found that none of these cases uses the word ‘laches’.[18] These cases hold that if the claimant was fully cognizant of the facts from the outset but failed to bring proceedings to revoke probate for several years, and he was not otherwise prevented from doing so because of disability or other reason, the claim may be barred.
The claimant argued that these cases are examples of what we would now call abuse of process, but Justice Matthews did not accept that argument. He said:[19]
Acquiescence, waiver and estoppel are not examples of abuse of process, but quite separate doctrines operating to bar claims in limne. In such cases the cause of action embarked upon is not in itself improper or abusive. It simply does not lie in the circumstances. In Re Estate of Langton[20] the Court did not ascribe the failure of the second claim or the appeal to an abuse of process, but to a rule of probate law, distinct from the common law rule of estoppel per rem judicatam. I accept than in some cases the facts that give rise to a defence of acquiescence, waiver or estoppel may also demonstrate that the claim is also an abuse, but the two things are and remain conceptually distinct. Moreover, it is established that ‘mere delay in pursuing a claim, however inordinate and inexcusable, does not without more constitute an abuse of process’.[21]
Consequently, Justice Matthews considered the following propositions were warranted:[22]
(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 the distribution of the estate.
He went on to state that whether the third and fourth propositions should be referred to as a probate version of laches or under some other name does not really matter. Whatever they are called, they represent the probate law applicable to this case.
3.2.4 Application to Facts
Justice Matthews then applied the law to the facts. He noted that Lorraine, the executor, obtained probate of the will and codicil in 2011, and then administered the estate. In 2013 the claimant instructed solicitors to explore the question whether the codicil was invalid. But, having received their advice, he did not take the matter further. He brought this claim only in 2019 and tried to justify the delay but Justice Matthews did not accept the justification. Moreover the claimant waited until Christine herself died and also after one witness had died while the only surviving witness was his former partner’s mother and the grandmother of his children. As noted above, Justice Matthews found that the claimant, the former partner, and her mother concocted a story about how the codicil was executed, which he rejected.
Thus he felt himself entirely justified, applying the probate authorities discussed above, in concluding that the claimant is barred by what he called the probate doctrine of laches from bringing his claim.
He went on to note that if he were wrong about the probate doctrine of laches, the equitable doctrine of laches would apply equally to bar the underlying intended claim to recover moneys from the beneficiaries of Christine’s estate. In that case, the claim would be ‘utterly academic’ and should be struck as without purpose.
He stated further that if he were wrong about that, he would hold that the evidence was inadequate to overcome the presumption of validity. But even if it was overcome, he was satisfied on the evidence that the codicil was properly executed.
3.2.5 Application to Canada?
In Canada we have also encountered situations in probate in which a claimant, fully cognizant of the facts had delayed inordinately in bringing her claim. The following are four examples.
Re O’Reilly (No 2).[23] A testator died in 1945 leaving a life interest in his farm to his wife with remainder to his nine children. The will was not probated. The wife died in 1957 and three children remained on the farm. They claimed title by adverse possession. The other children obtained letters of administration with will annexed but the trial judge held that their rights were extinguished by limitations. However, he went on to state that if that were incorrect, he would acknowledge the equitable defence of laches and acquiescence and hold that the other children were estopped or otherwise barred from claiming their interests in the farm. So this case seems to have assumed that equitable defences could have been used to bar the plaintiffs’ claim.
Oestreich v Brunnhuber.[24] The testator left her entire estate to her husband and appointed her daughter her executor. The daughter never probated the will. The husband then entered into a common law relationship with Hedwig Oestreich and by his will left her his house and the residue to his children. The children moved for summary judgment, claiming that their mother’s will was invalid for lack of capacity. They had made no inquiry about their mother’s will but assumed that their father was entitled to live in the house and that they would inherit it on his death. Hedwig moved for summary judgment declaring that the children were estopped from contesting the validity of their mother’s will. Justice Haley referred to Re O’Reilly (No 2) discussed in the previous paragraph. She agreed with counsel’s argument that the equitable doctrine of laches applies only in cases in which an equitable remedy is sought. However, she felt that the court is not limited by strict differentiation between law and equity when considering whether a claimant has inexcusably delayed in bringing her claim to the detriment of another party. She concluded that this was not a proper case for summary judgment and dismissed the motions for. Thus in this case the court seems to have contemplated a concept of laches in probate.
Bermingham v Bermingham Estate.[25] Jeanette Bermingham died in 1998 having appointed her lawyer her executor in her will. Apart from the disposition of Jeanette’s personal effects and some legacies, the residue was left in trust for Jeanette’s three grandchildren, Diane, Linda, and Cathy, the children of her only surviving daughter Mary. In 2006 on motion by Mary the court ordered a trial with respect to the validity of the will. The respondents were the executor and the three grandchildren. Linda then moved to have Mary’s motion dismissed for lack of standing. Mary had notice of the appointment of the lawyer and raised no objections to the appointment. She did seek legal advice six months after the appointment of the lawyer about contesting the will but the lawyer she spoke to was not prepared to act on a will challenge. She alleged that she has been clinically depressed at the time of her mother’s death and since then and that she felt that she could not proceed with a will challenge without signing a retainer agreement with a lawyer and she was unable to do that because she lacked significant income and was on social assistance. Meanwhile the executor proceeded with the administration of the estate. Mary’s motion was brought, inter alia, pursuant to Rules 75.04 (revocation of certificate of appointment), and 75.05 (motion for return of certificate). Justice Perell noted that the issue was when a court should exercise its jurisdiction under those rules. His Honour concluded that Mary’s motion for revocation or recalling of the certificate was not brought promptly and her explanation for the delay was weak. Although she had the benefit of legal advice and was aware of her rights, Mary failed to bring these proceedings for almost eight years. In those circumstances, His Honour refused to exercise his discretion under Rules 75.04 and 75.05 and dismissed Mary’s motion.
Re Prong Estate.[26] The testator made her will in 2007 and died in that year. The court granted a certificate of appointment to the named executors in 2008. They then proceeded to administer the estate and made several interim distributions. In 2010 some beneficiaries moved for an order returning the certificate to the court and directing that the will be proved in solemn form. The court noted that administration of the estate was substantially complete, the will appeared to have been executed properly, and the beneficiaries had sufficient information to move forward with their concerns in 2008. But they delayed in bringing the motion for approximately two and a half years and the reason they gave for the delay was weak. In those circumstances the court dismissed the motion.
Clearly, therefore, Canadian courts have allowed applications to revoke probate for delay, although they did not recognize the delay as raising a possible defence because of a doctrine of laches in probate.
So where does that leave us? Should we in Canada adopt the name ‘probate doctrine of laches’? My inclination is to say, Yes, we should. As I have just shown, in Canada our courts will refuse to allow a probate claim to proceed for inordinate delay when the claimant had full knowledge of the facts. The cases do not use the term laches, but why not give such a defence an appropriate name, i.e., laches, being careful of course to distinguish it from equitable laches.
We have had experience distinguishing other probate defences from equitable ones. Thus, for example we distinguish the probate doctrine of undue influence from the equitable doctrine with the same name, and it is now well known that in probate the onus of proof of undue influence always remains on the person who attacks a will on that ground, even if the person was in a position to exercise undue influence over the testator and was instrumental in preparing the will or giving instructions for it.[27] In contrast in the equitable sphere, for example, in the context of inter vivos gifts, if the person who receives a gift was in a position to exert undue influence over the donor and stood in a fiduciary or confidential relationship to her, equity raises a presumption of undue influence.[28]
Thus we can distinguish between the different defences and other doctrines in probate and equity. So again, when a claimant is fully cognizant of the facts but delays too long in bringing proceedings to revoke probate, why not say that this attracts the probate doctrine of laches. A name takes the mystery out of a concept.
3.2.6 Effect of Limitations
However, in Canada we have an additional problem and that is limitation of actions. Legislation in several provinces imposes a two-year limitation period for claims. In Ontario, for example, section 4 of the Limitations Act 2002[29] imposes a general two-year limitation period for bringing a proceeding in respect of a claim, subject to the discoverability principles outlined in s 5. However, s 16(1)(a) provides that there is no limitation period with respect to a proceeding for a declaration if no consequential relief is sought. In Leibel v Leibel,[30] followed by many subsequent cases, Justice Greer held that the section 4 two-year limitation period applies to will challenges. In Leibel a beneficiary not only sought an order revoking the grant of Certificate of Appointment of Estate Trustees with a will, but also an order removing estate trustees, an order requiring the estate trustees to pass their accounts, and an order appointing an estate trustee during litigation. Justice Greer held that these additional orders amounted to consequential relief and therefore she held that the claim was barred under s 4. However, in the later case of Neuberger v York[31] the Ontario Court of Appeal stated: ‘Nothing in these reasons is to be taken as having decided whether the Limitations Act applies to the bringing of an application under Rule 75.’ Does this mean that unless or until the court decides that issue such applications are exempt from the Act?
For cases in which the applicant sought only a declaratory order to which the Limitations Act does not apply, see Piekut v Romoli[32] and Kyle v Atwill.[33] However, in the latter case the court noted that if consequential relief is sought in subsequent proceedings after the declaratory order has been granted, it will be subject to the Act.
At the risk of repeating myself, a number of Canadian cases dealing with probate claims speak of laches as an equitable defence. They note, rightly, that an equitable defence can be raised only in respect of an equitable remedy.[34] But they fail to realize that there may also be a probate doctrine of laches that that can serve as a defence to a probate remedy. Nevertheless, considering the restraint imposed by limitations legislation such a probate doctrine may be of limited utility.
We shall leave this to the creative litigators among us!
—
[1] [2023] EWHC 996 (Ch).
[2] I acknowledge the assistance of my colleague, Nima Hojjati on limitation issues.
[3] Wills Act 1837, 7 Will 4 & 1 Vict, c 26, s , as amended by the Administration of Justice Act 1982, c 53 (UK), s 17.
[4] The expression means that all things are presumed to have been done correctly. The phrase et solemniter is often omitted when a court refers to the presumption.
[5] See, eg, Fisher v Brooker, [2009] 1 WLR 1764 (HL), paras 64, 79, per Lord Neuberger.
[6] See, eg, Mohan v Broughton. [1899] P 211, affirmed [1900] P 54 (CA); Re McElroy, [2023] EWHC 109 (Ch).
[7] See Williams v Evans, [1911] P 175, in which Horridge J stated that a claim to revoke probate can be denied for laches, but did not find the delay sufficiently long. As Matthews J notes in James v Scudamore, para 133, Horridge must have been referring to the parallel doctrine of laches in the law of probate.
[8] See, eg, Re Coghlan, [1948] 2 All ER 79 (CA) per Evershed LJ., discussed in James v Scudamore at paras 140 and 143; Re Langton’s Estate, [1964] P 163 (CA)
[9] [1982] 1 WLR 310.
[10] Ibid, p 318.
[11] Footnote 8, supra.
[12] Ibid. paras 178-79.
[13] By the Court of Probate Act 1857, c 77.
[14] 36 & 37 Vict, c 31.
[15] See, eg, Land Transfer Act 1897, 60 & 61 Vict, c 65, s 1, pursuant to which probate could thereafter be granted of real property as well as of personal property. In Ontario the surrogate courts acquired jurisdiction over wills of real property some thirteen years earlier, by s 4(1) of the Devolution of Estates Act. SO 1886, c 22.
[16] See Supreme Court of Judicature (Consolidation) Act 2025, c 27 (UK), s 20; and Supreme Courts Act 1981, c 54, s 25 (now the Senior Courts Act 1981), which replaced the 1925 Act.
[17] Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316, §2.
[18] The cases considered by Justice Matthews are: Hoffman v Norris (1805), 2 Phill 230n; Newell v Weeks (1814), 2 Phill 224; Bell v Armstrong (1822) 1 Add 367; Braham v Burchell (1826), 3 Add 243; Merryweather v Turner (1844), 3 Curt 802; Ratcliffe v Barnes (1862), 2 Sw & Tr 486.
[19] James v Scudamore para 196.
[20] Footnote 8, supra.
[21] Asturion Foundation v Alibrahim, [2020] 1 WLR 1627, para 47, per Arnold LJ (with whom Ryder and Leggatt LJJ agreed).
[22] James v Scudamore, para 197 (case references omitted).
[23] (1980, 28 OR 2d 481, affirmed (1981), 33 OR (2d) 352 (CA).
[24] 2001 CarswellOnt 273 (SCJ).
[25] 2007 CarswellOnt 2033 (SCJ).
[26] 2011 ONSC 632.
[27] See Seguin v Pearson, 2018 ONCA 355. To the same effect, see Naidoo v Barton, [2023] EWHC 500 (Ch).
[28] See, eg, Goodman Estate v Geffen. [1991] 2 SCR 353.
[29]SO 2002, c 24.
[30] 2014 ONSC 4516.
[31] 2015 ONCA 191, para 113, footnote 14.
[32] 2020 ONCA 26.
[33] 2020 ONCA 476.
[34] See M(K) v M(H), 1992 CarswellOnt 841. [1992] 3 SCR 6, para 98, where the court quotes with approval from Meagher, Gummow and Lehane, Equity Doctrines and Remedies (2ne ed, 1984), p 755. And see also text at footnote 5, supra.
Menu
Written by: Albert Oosterhoff
Posted on: July 31, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
A recent English High Court case, James v Scudamore,[1] a decision of HHJ Paul Matthews, sitting as a judge of the High Court, poses the above question and answers it in the affirmative. This is rather unusual and for that reason the case deserves to be blogged.[2]
2. Facts
Ivor Percy James (‘Ivor’) died in 2010. He left a will made in 1998 and a codicil made in December 2002. The will gave a life interest in the matrimonial home to Ivor’s second wife, Christine, with remainder to his two sons by his first marriage to Dianne, Martyn and Raymond. The codicil changed this provision by giving the matrimonial home absolutely to Christine. Christine proved both the will and the codicil in 2011.
Christine died in 2018. By her will she appointed her niece, Lorraine, executor, who proved Christine’s will. Christine’s will left 30% of her estate to Martyn’s children and 70% to her (Christine’s) sister, Diana, Lorraine’s mother. However, Diana died six months after Christine. By her will she appointed her husband executor and named him her universal legatee. He is the third defendant in these proceedings. By chain of representation, Lorraine is now the personal representative of Ivor’s estate.
The attesting witnesses to the 2002 codicil were Dawn Buckley and her husband Noel Buckley. He died in 2017, so Dawn is the only surviving witness. Dawn is the mother of Dianne James, who is the former partner of Martyn and they together had the children to whom Christine left 30% of her estate.
In 2020 Martyn filed a claim in which he seeks revocation of the probate of Ivor’s will and codicil granted to Christine, and the grant of a fresh probate of the will alone. He alleges that the codicil is invalid because: (a) the witnesses attested it before Ivor signed it; (b) the witnesses signed on a different date than the one stated on the face of the codicil; (c) Christine gave all the instructions for the preparation of the codicil, and she completed Ivor’s signature since he was suffering from the after-effects of a stroke at the time. Lorraine denies that the codicil was not properly executed, and that the claim should be dismissed for laches. An earlier practice direction did not give permission for any expert evidence about the handwritten signatures to be adduced. However, a copy of the codicil was produced at trial.
The witnesses included Martyn, Dawn Buckley, Dianne James, and Lorraine.
In 2013 Martyn consulted solicitors about the possible invalidity of the codicil. After investigation and consultation with family members, Dawn in particular, the solicitors wrote to Christine that in their opinion the codicil was formally invalid. She wrote back to the solicitors with her account of the execution of the codicil and it complied with the instructions given by her and Ivor’s solicitors. Dawn disputed Christine’s account but Justice Matthews concluded that she and other family members did not tell the truth
3. Analysis and Judgment
3.1 Validity of Codicil
Having heard the testimony of the witnesses, Justice Matthews concluded that he did not trust the evidence of Martyn and would put no weight on it unless it was independently corroborated. He took a similar view of the testimony of Dawn Buckley, the grandmother of Martyn and Dianne’s children, stating that in his opinion she was telling him her part of a concocted story He also disbelieved the testimony of Dianne, Martyn’s former partner and the mother of their children. On the other hand, he accepted the evidence of Lorraine, as she was an intelligent and transparently honest witness.
Justice Matthews made an important point about the evidence of the witnesses regarding handwritten signatures. He stated that witnesses who are not experts cannot compare specimen signatures with disputed signatures. However, they can give evidence of the identity of a person, or familiarity with a signature since those are not regarded as expert opinion. He also found that Raymond had been estranged from Ivor for some time.
Justice Matthews concluded that the codicil was signed and attested properly and, having examined Ivor’s signature on the codicil, that it appeared to be in his hand and not in Christine’s hand. Then he considered the statutory requirements for execution of a testamentary document.[3] Although there have been suggestions in England that the 1982 amendments removed the concept of time sequencing of the signatures of the testator and witnesses, he opined that it is still the law that the testator’s signature must be on the will before a witness can attest. Then, applying the presumption omnia rite et solemniter esse acta,[4] he concluded that the codicil had been properly executed and attested.
3.2 A Probate Doctrine of Laches?
Justice Matthews then turned to the question whether there is a probate doctrine of laches – the main reason for this blog. We are all familiar with the doctrine of laches as an equitable doctrine, but it can serve to bar only a claim to equitable relief.[5] And a claim to revoke letters probate or letters of administration is not a claim to equitable relief.
3.2.1 Modern English Cases
Some modern English cases discussed by Justice Matthews note that equitable laches can come into play if the claimant seeks to revoke probate in order to pursue some underlying equitable claim that can be pursued only if the probate is revoked. In that case, if the equitable laches must bar that claim, the court will refuse the revocation.[6] On the other hand, if the claim is to revoke probate so that the claimant can contest the validity of the will, this is not an equitable claim, but it can be defeated for delay if it is sufficiently long.[7] Some courts have also suggested that if the plaintiff can achieve no real advantage from the proceeding, the court can hold it to be frivolous and vexatious and dismiss it.[8] Similarly, in Re Flynn[9] Slade J said:[10]
… the court will never strike out an action to revoke a grant of probate or letters of administration on the mere ground of delay in instituting it, unless it is satisfied that the claim is otherwise frivolous or vexatious or is for other reasons an abuse of the process of the court.
So also, in Re Langton’s Estate[11] Diplock LJ noted that in probate matters the High Court is the successor to the Prerogative Court of Canterbury and that the law developed in that court continues to apply unless changed by legislation or rules of court. Then he went on to say:[12]
… it was the practice of the Prerogative Court to permit any person claiming an interest in the estate of the deceased, whose rights could be affected by the grant applied for, to intervene in the action at any stage… As a corollary to this right of intervention, the Prerogative Court applied the rule that a person interested in the estate of the deceased who was in fact cognizant of a suit with respect to the validity of a will by which his interest was to his knowledge affected and who stood by and took no part in the suit was nevertheless bound by the decree pronouncing in favour of the will… This rule differs from the common law rule of estoppel per rem judicatam. It is peculiar to the probate jurisdiction of the court and is a rule of substantive law…
3.2.2 Cases from the Prerogative Courts
Since none of the modern cases definitively recognized a probate doctrine of laches, Justice Matthews turned to old cases decided in the Prerogative Courts, which had probate jurisdiction in relation to personalty until the creation of the Court of Probate in 1857,[13] when the Prerogative Courts were abolished, and their jurisdiction was transferred to the new court. The Supreme Court of Judicature Act 1873[14] abolished the Court of Probate and transferred its jurisdiction the High Court of Justice. While there were a number of subsequent statutory changes, [15] the jurisdiction of the High Court over probate continued and it continued to apply the law of probate as it used to be administered by the Prerogative Courts.[16]
In an article a few years ago I traced the history of the law of probate in England and explained how we inherited that law as administered by the Prerogative Courts in Canada. I also explained how that law survived the abolition of the Surrogate Courts in Ontario and the transfer of their jurisdiction to the Superior Court of Justice.[17] Thus, reference to the older Prerogative Court cases is legitimate.
3.2.3 Analysis
Justice Matthews found that none of these cases uses the word ‘laches’.[18] These cases hold that if the claimant was fully cognizant of the facts from the outset but failed to bring proceedings to revoke probate for several years, and he was not otherwise prevented from doing so because of disability or other reason, the claim may be barred.
The claimant argued that these cases are examples of what we would now call abuse of process, but Justice Matthews did not accept that argument. He said:[19]
Acquiescence, waiver and estoppel are not examples of abuse of process, but quite separate doctrines operating to bar claims in limne. In such cases the cause of action embarked upon is not in itself improper or abusive. It simply does not lie in the circumstances. In Re Estate of Langton[20] the Court did not ascribe the failure of the second claim or the appeal to an abuse of process, but to a rule of probate law, distinct from the common law rule of estoppel per rem judicatam. I accept than in some cases the facts that give rise to a defence of acquiescence, waiver or estoppel may also demonstrate that the claim is also an abuse, but the two things are and remain conceptually distinct. Moreover, it is established that ‘mere delay in pursuing a claim, however inordinate and inexcusable, does not without more constitute an abuse of process’.[21]
Consequently, Justice Matthews considered the following propositions were warranted:[22]
(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 the distribution of the estate.
He went on to state that whether the third and fourth propositions should be referred to as a probate version of laches or under some other name does not really matter. Whatever they are called, they represent the probate law applicable to this case.
3.2.4 Application to Facts
Justice Matthews then applied the law to the facts. He noted that Lorraine, the executor, obtained probate of the will and codicil in 2011, and then administered the estate. In 2013 the claimant instructed solicitors to explore the question whether the codicil was invalid. But, having received their advice, he did not take the matter further. He brought this claim only in 2019 and tried to justify the delay but Justice Matthews did not accept the justification. Moreover the claimant waited until Christine herself died and also after one witness had died while the only surviving witness was his former partner’s mother and the grandmother of his children. As noted above, Justice Matthews found that the claimant, the former partner, and her mother concocted a story about how the codicil was executed, which he rejected.
Thus he felt himself entirely justified, applying the probate authorities discussed above, in concluding that the claimant is barred by what he called the probate doctrine of laches from bringing his claim.
He went on to note that if he were wrong about the probate doctrine of laches, the equitable doctrine of laches would apply equally to bar the underlying intended claim to recover moneys from the beneficiaries of Christine’s estate. In that case, the claim would be ‘utterly academic’ and should be struck as without purpose.
He stated further that if he were wrong about that, he would hold that the evidence was inadequate to overcome the presumption of validity. But even if it was overcome, he was satisfied on the evidence that the codicil was properly executed.
3.2.5 Application to Canada?
In Canada we have also encountered situations in probate in which a claimant, fully cognizant of the facts had delayed inordinately in bringing her claim. The following are four examples.
Re O’Reilly (No 2).[23] A testator died in 1945 leaving a life interest in his farm to his wife with remainder to his nine children. The will was not probated. The wife died in 1957 and three children remained on the farm. They claimed title by adverse possession. The other children obtained letters of administration with will annexed but the trial judge held that their rights were extinguished by limitations. However, he went on to state that if that were incorrect, he would acknowledge the equitable defence of laches and acquiescence and hold that the other children were estopped or otherwise barred from claiming their interests in the farm. So this case seems to have assumed that equitable defences could have been used to bar the plaintiffs’ claim.
Oestreich v Brunnhuber.[24] The testator left her entire estate to her husband and appointed her daughter her executor. The daughter never probated the will. The husband then entered into a common law relationship with Hedwig Oestreich and by his will left her his house and the residue to his children. The children moved for summary judgment, claiming that their mother’s will was invalid for lack of capacity. They had made no inquiry about their mother’s will but assumed that their father was entitled to live in the house and that they would inherit it on his death. Hedwig moved for summary judgment declaring that the children were estopped from contesting the validity of their mother’s will. Justice Haley referred to Re O’Reilly (No 2) discussed in the previous paragraph. She agreed with counsel’s argument that the equitable doctrine of laches applies only in cases in which an equitable remedy is sought. However, she felt that the court is not limited by strict differentiation between law and equity when considering whether a claimant has inexcusably delayed in bringing her claim to the detriment of another party. She concluded that this was not a proper case for summary judgment and dismissed the motions for. Thus in this case the court seems to have contemplated a concept of laches in probate.
Bermingham v Bermingham Estate.[25] Jeanette Bermingham died in 1998 having appointed her lawyer her executor in her will. Apart from the disposition of Jeanette’s personal effects and some legacies, the residue was left in trust for Jeanette’s three grandchildren, Diane, Linda, and Cathy, the children of her only surviving daughter Mary. In 2006 on motion by Mary the court ordered a trial with respect to the validity of the will. The respondents were the executor and the three grandchildren. Linda then moved to have Mary’s motion dismissed for lack of standing. Mary had notice of the appointment of the lawyer and raised no objections to the appointment. She did seek legal advice six months after the appointment of the lawyer about contesting the will but the lawyer she spoke to was not prepared to act on a will challenge. She alleged that she has been clinically depressed at the time of her mother’s death and since then and that she felt that she could not proceed with a will challenge without signing a retainer agreement with a lawyer and she was unable to do that because she lacked significant income and was on social assistance. Meanwhile the executor proceeded with the administration of the estate. Mary’s motion was brought, inter alia, pursuant to Rules 75.04 (revocation of certificate of appointment), and 75.05 (motion for return of certificate). Justice Perell noted that the issue was when a court should exercise its jurisdiction under those rules. His Honour concluded that Mary’s motion for revocation or recalling of the certificate was not brought promptly and her explanation for the delay was weak. Although she had the benefit of legal advice and was aware of her rights, Mary failed to bring these proceedings for almost eight years. In those circumstances, His Honour refused to exercise his discretion under Rules 75.04 and 75.05 and dismissed Mary’s motion.
Re Prong Estate.[26] The testator made her will in 2007 and died in that year. The court granted a certificate of appointment to the named executors in 2008. They then proceeded to administer the estate and made several interim distributions. In 2010 some beneficiaries moved for an order returning the certificate to the court and directing that the will be proved in solemn form. The court noted that administration of the estate was substantially complete, the will appeared to have been executed properly, and the beneficiaries had sufficient information to move forward with their concerns in 2008. But they delayed in bringing the motion for approximately two and a half years and the reason they gave for the delay was weak. In those circumstances the court dismissed the motion.
Clearly, therefore, Canadian courts have allowed applications to revoke probate for delay, although they did not recognize the delay as raising a possible defence because of a doctrine of laches in probate.
So where does that leave us? Should we in Canada adopt the name ‘probate doctrine of laches’? My inclination is to say, Yes, we should. As I have just shown, in Canada our courts will refuse to allow a probate claim to proceed for inordinate delay when the claimant had full knowledge of the facts. The cases do not use the term laches, but why not give such a defence an appropriate name, i.e., laches, being careful of course to distinguish it from equitable laches.
We have had experience distinguishing other probate defences from equitable ones. Thus, for example we distinguish the probate doctrine of undue influence from the equitable doctrine with the same name, and it is now well known that in probate the onus of proof of undue influence always remains on the person who attacks a will on that ground, even if the person was in a position to exercise undue influence over the testator and was instrumental in preparing the will or giving instructions for it.[27] In contrast in the equitable sphere, for example, in the context of inter vivos gifts, if the person who receives a gift was in a position to exert undue influence over the donor and stood in a fiduciary or confidential relationship to her, equity raises a presumption of undue influence.[28]
Thus we can distinguish between the different defences and other doctrines in probate and equity. So again, when a claimant is fully cognizant of the facts but delays too long in bringing proceedings to revoke probate, why not say that this attracts the probate doctrine of laches. A name takes the mystery out of a concept.
3.2.6 Effect of Limitations
However, in Canada we have an additional problem and that is limitation of actions. Legislation in several provinces imposes a two-year limitation period for claims. In Ontario, for example, section 4 of the Limitations Act 2002[29] imposes a general two-year limitation period for bringing a proceeding in respect of a claim, subject to the discoverability principles outlined in s 5. However, s 16(1)(a) provides that there is no limitation period with respect to a proceeding for a declaration if no consequential relief is sought. In Leibel v Leibel,[30] followed by many subsequent cases, Justice Greer held that the section 4 two-year limitation period applies to will challenges. In Leibel a beneficiary not only sought an order revoking the grant of Certificate of Appointment of Estate Trustees with a will, but also an order removing estate trustees, an order requiring the estate trustees to pass their accounts, and an order appointing an estate trustee during litigation. Justice Greer held that these additional orders amounted to consequential relief and therefore she held that the claim was barred under s 4. However, in the later case of Neuberger v York[31] the Ontario Court of Appeal stated: ‘Nothing in these reasons is to be taken as having decided whether the Limitations Act applies to the bringing of an application under Rule 75.’ Does this mean that unless or until the court decides that issue such applications are exempt from the Act?
For cases in which the applicant sought only a declaratory order to which the Limitations Act does not apply, see Piekut v Romoli[32] and Kyle v Atwill.[33] However, in the latter case the court noted that if consequential relief is sought in subsequent proceedings after the declaratory order has been granted, it will be subject to the Act.
At the risk of repeating myself, a number of Canadian cases dealing with probate claims speak of laches as an equitable defence. They note, rightly, that an equitable defence can be raised only in respect of an equitable remedy.[34] But they fail to realize that there may also be a probate doctrine of laches that that can serve as a defence to a probate remedy. Nevertheless, considering the restraint imposed by limitations legislation such a probate doctrine may be of limited utility.
We shall leave this to the creative litigators among us!
—
[1] [2023] EWHC 996 (Ch).
[2] I acknowledge the assistance of my colleague, Nima Hojjati on limitation issues.
[3] Wills Act 1837, 7 Will 4 & 1 Vict, c 26, s , as amended by the Administration of Justice Act 1982, c 53 (UK), s 17.
[4] The expression means that all things are presumed to have been done correctly. The phrase et solemniter is often omitted when a court refers to the presumption.
[5] See, eg, Fisher v Brooker, [2009] 1 WLR 1764 (HL), paras 64, 79, per Lord Neuberger.
[6] See, eg, Mohan v Broughton. [1899] P 211, affirmed [1900] P 54 (CA); Re McElroy, [2023] EWHC 109 (Ch).
[7] See Williams v Evans, [1911] P 175, in which Horridge J stated that a claim to revoke probate can be denied for laches, but did not find the delay sufficiently long. As Matthews J notes in James v Scudamore, para 133, Horridge must have been referring to the parallel doctrine of laches in the law of probate.
[8] See, eg, Re Coghlan, [1948] 2 All ER 79 (CA) per Evershed LJ., discussed in James v Scudamore at paras 140 and 143; Re Langton’s Estate, [1964] P 163 (CA)
[9] [1982] 1 WLR 310.
[10] Ibid, p 318.
[11] Footnote 8, supra.
[12] Ibid. paras 178-79.
[13] By the Court of Probate Act 1857, c 77.
[14] 36 & 37 Vict, c 31.
[15] See, eg, Land Transfer Act 1897, 60 & 61 Vict, c 65, s 1, pursuant to which probate could thereafter be granted of real property as well as of personal property. In Ontario the surrogate courts acquired jurisdiction over wills of real property some thirteen years earlier, by s 4(1) of the Devolution of Estates Act. SO 1886, c 22.
[16] See Supreme Court of Judicature (Consolidation) Act 2025, c 27 (UK), s 20; and Supreme Courts Act 1981, c 54, s 25 (now the Senior Courts Act 1981), which replaced the 1925 Act.
[17] Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316, §2.
[18] The cases considered by Justice Matthews are: Hoffman v Norris (1805), 2 Phill 230n; Newell v Weeks (1814), 2 Phill 224; Bell v Armstrong (1822) 1 Add 367; Braham v Burchell (1826), 3 Add 243; Merryweather v Turner (1844), 3 Curt 802; Ratcliffe v Barnes (1862), 2 Sw & Tr 486.
[19] James v Scudamore para 196.
[20] Footnote 8, supra.
[21] Asturion Foundation v Alibrahim, [2020] 1 WLR 1627, para 47, per Arnold LJ (with whom Ryder and Leggatt LJJ agreed).
[22] James v Scudamore, para 197 (case references omitted).
[23] (1980, 28 OR 2d 481, affirmed (1981), 33 OR (2d) 352 (CA).
[24] 2001 CarswellOnt 273 (SCJ).
[25] 2007 CarswellOnt 2033 (SCJ).
[26] 2011 ONSC 632.
[27] See Seguin v Pearson, 2018 ONCA 355. To the same effect, see Naidoo v Barton, [2023] EWHC 500 (Ch).
[28] See, eg, Goodman Estate v Geffen. [1991] 2 SCR 353.
[29]SO 2002, c 24.
[30] 2014 ONSC 4516.
[31] 2015 ONCA 191, para 113, footnote 14.
[32] 2020 ONCA 26.
[33] 2020 ONCA 476.
[34] See M(K) v M(H), 1992 CarswellOnt 841. [1992] 3 SCR 6, para 98, where the court quotes with approval from Meagher, Gummow and Lehane, Equity Doctrines and Remedies (2ne ed, 1984), p 755. And see also text at footnote 5, supra.
Author
View all posts