McElroy v McElroy - can laches be used to defeat a probate claim?

Craig Ridge, Partner and Head of Contentious Probate at Higgs LLP, looks at the recent case of McElroy v McElroy [2023] EWHC 109 (Ch) and the use of laches to defeat a probate claim.

McElroy v McElroy

On 20 January 2023 His Honour Justice (HHJ) Richard Williams handed down his decision in the case of McElroy v McElroy [2023] EWHC 109 (Ch), which determined whether laches could be used as a defence to a probate claim. The trial was of a preliminary issue, but in deciding that issue the court determined the claim.

The facts

Ray McElroy died suddenly on 18 February 2011 aged 50. He had been married to his second wife, Lynne, for five months at the time of his death.

Ray had provided instructions for a will in 2011 which appointed Lynne and his brother, Paul, as his executors and which left the residue of his estate to Lynne. However, that intended will was not executed by Ray due to his untimely death. Lynne therefore obtained a grant of letters of administration on 24 August 2011, with Ray’s net estate being stated as £490,495.

Ray was a member of his employer’s life assurance scheme, which by reason of an expression of wishes completed by Ray in 2006, would have been paid to Paul in its entirety had Lynne’s solicitors not made representations to the scheme trustees. Consequently, in August 2011 the trustees paid the death in service benefit to Paul and Lynne equally, each of them receiving £172,167.

On 18 March 2012, Lynne, in her capacity as administratrix of the estate, transferred the house that she and Ray had lived in together (which was in Ray’s sole name) to herself as beneficiary of the estate before subsequently signing the final estate accounts on 9 April 2012, which recorded the value of Ray’s house as £320,000. In February 2015, Lynne then purchased her current home using what had been Ray’s house as part exchange with the developer.

Ray had made wills in both Australia and Scotland, although the will made in Australia was irrelevant to the administration of the estate in this jurisdiction and Lynne, perhaps understandably, had thought the Scottish will to have been revoked by her subsequent marriage to Ray in 2010. The Scottish will appointed Paul as his sole executor and beneficiary.

By correspondence from his solicitors, on 6 July 2018 Paul threatened proceedings seeking to revoke the grant of letters of administration on the basis that, under Scottish law, the Scottish will was not revoked by reason of Ray and Lynne’s marriage. Paul’s stated intention, as set out within that letter of claim, was to enable Paul to apply for confirmation in the Scottish Sherriff Court of the Scottish will and thereafter administer Ray's estate in accordance with the terms of that will. This would necessarily require the return of assets received by Lynne from Ray's estate to Paul as the beneficiary entitled to those assets.

Following an unsuccessful attempt to persuade the Probate Registry to revoke the grant under The Non-Contentious Probate Rules 1987, the claim was issued initially on 26 November 2020 and then again on 4 October 2021, the first claim having been served out of time. Lynne raised defences of laches, acquiescence and issue estoppel. By consent of the parties, the Court ordered on 7 March 2022 that the issue as to whether these defences should bar Paul’s claim be tried as a preliminary issue. That trial was heard by HHJ Richard Williams on 4 October 2022.

The arguments

Paul (relying primarily upon Coghlan (Deceased), Re [1948] 2 All E.R. 68, [1948] 5 WLUK, but also Fisher v Brooker [2009]) sought to argue that the defence of laches, being an equitable relief, could not apply to the remedy sought by him, which was the revocation of the grant of letters of administration in Ray’s estate.

He further argued that the court was bound to proceed on the basis that the substantive claim (namely that Ray was domiciled in Scotland, such that the will was not revoked by his subsequent marriage to Lynne) was a good claim, in which case:

The letters of administration granted to Lynne would be set aside as of right.
He could apply as executor for a grant of confirmation in Scotland. Any claim by Paul for recovery of Ray's estate would then be in Scotland, where it would be for Lynne to argue any defence based upon delay.

Conversely, Lynne argued that whilst generally laches can only bar equitable relief, laches is a defence to a probate claim in certain narrow circumstances, and sought to rely upon Mohan v Broughton [1899].

The outcome

Not only was the preliminary issue decided in Lynne’s favour, but in doing so, the court dismissed the claim. A number of factors proved to be Paul’s undoing:

Firstly, the assets within the estate had been distributed.
Secondly, Paul had not pleaded any jurisdictional issue.
Thirdly, Paul had expressly consented to the question of Lynne’s equitable defences being tried as a preliminary issue and, as such, obviated any subsequent argument that such matters should be reserved for the Scottish courts.
Fourthly, the conduct of the parties: Paul having known of the will at the date of Ray’s death; having been able to obtain a copy of the will much earlier than he did; having failed to disclose his prospective entitlement in Ray’s estate within his intervening divorce proceedings; and having unjustifiably delayed in bringing the claim since obtaining a copy of the will in 2016. On the other hand, Lynne was found to have acted transparently, without having contributed to the delay.

Consideration was given as to the appropriate rule of law. Concern appears to have been expressed by HHJ Richard Williams as to the fact that, unlike in England, there is no Scottish court of equity, and that no equivalent to the Inheritance (Provision for Family and Dependants) Act 1975 would be available for Lynne. However, Paul’s failure to plead any foreign law, coupled with his express agreement to matters being dealt with by way of preliminary issue, enabled the court to determine the trial pursuant to English law, applying the default rule as per Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45.

The court recognised that subsequent issues, such as English domicile determination, Scottish confirmation proceedings and Scottish recovery proceedings would be costly and protracted. Paul had taken 12 years since Ray’s death to advance matters in circumstances where the court found he could have done so earlier but did not. Consequently, it was judged to be unconscionable for Paul now to bring the claim, the court seemingly seeking further comfort for its decision by reason of the not insignificant payment Paul had already received from Ray’s death in service provision.

Summary

The case grapples with the interplay between Scottish and English law but is underpinned by a clear want on the part of the court to exercise what it considered to be its equitable jurisdiction, based on the historic conduct of the parties and the balance of prejudice between them. It is also a salutary reminder as to how critical decisions at case management stage are, and how important what is (or, in this case, what was not) within the pleadings can be to the outcome.

About the author

Craig Ridge, Partner and Head of Contentious Probate at Higgs LLP. Having been advising on all contentious aspects of probate, estate administration and trusts for over two decades, Craig is an affiliate member of the Society of Trust and Estate Practitioners and is recognised as Leading Individual by the Legal 500.