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McElroy v McElroy (2023) EWHC 109 (ch)

January 25, 2023 | Cases
McElroy v McElroy (2023) EWHC 109 (ch)

Date: 27th January 2023

Court: High Court

Aidan Briggs comments on McElroy v McElroy [2023] EWHC 109 (ch), as judgment is handed down from the High Court.

Practice Area: Trusts, Wills & Estates

Facts

Ray McElroy died suddenly on 18 February 2011, only 5 months after marrying his wife Lynne, and only a month after giving instructions for a new will which he never signed. She obtained an English grant of administration on the basis of intestacy and in April 2012, transferred the estate into her own name.

In fact, Ray had executed an earlier will in 2011, while he was living in Australia, which bequeathed his estate to his brother, Paul. Under both Australian and English law his marriage to Lynne revoked that will leaving him intestate, but not so under the law of Scotland, where he was living when he died.

In 2021 Paul issued probate proceedings against Lynne claiming that Ray had been domiciled in Scotland at the date of his marriage to Lynne, such that the will was not revoked. The result would be that Ray’s entire estate would pass to his brother and, since Scotland has no equivalent to the Inheritance Act 1975 and gives a surviving spouse only a share of the ‘moveable’ estate, the widow would be left with virtually nothing.

Lynne, represented by BDB Pitmans and Aidan Briggs, disputed whether Ray had ever lost his English domicile of origin, but also raised a defence of laches, relying upon the 10 years’ delay between Ray’s death and the issue of proceedings. The matter was set down for a trial of a preliminary issue.

Is laches a defence to a probate claim?

One of the principal issues raised at the hearing (although not pleaded), was whether laches could found any defence to a probate claim. In Fisher v Brooker [2009] 1 WLR Lord Neuberger held that laches can bar only equitable relief, not legal rights, and in re FLynne Deceased [1982] 1 WLR 310 Slade J held that “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, vexatious or for other reasons is an abuse of the court process”. However, in Mohan v Broughton [1899] P. 211 the court recognised that where the only purpose of a probate claim was to found a follow-up action to recover assets and that, equitable, claim would be barred by laches, the probate claim could properly be dismissed. The Court of Appeal in Re Coghlan deceased [1948] 2 All Er 68 however distinguished Mohan and found that a probate action could not be struck out as frivolous and vexatious merely because of delay.

HHJ Williams concluded that a probate claim may be dismissed for laches where (a) laches is properly pleaded as a defence; (b) the administration of the estate has been completed; and (c) the proceedings can serve no useful purpose because any subsequent claim for recovery of assets would be ‘bound to fail’ by reason of laches. Probate proceedings have no ‘special status’ before the courts; they must be case-managed in accordance with the CPR:

“In my judgment, the wishes expressed by a testator in their will are not so sacrosanct that the court is required automatically to embark upon an investigation upon the validity of the grant of letters of administration simply as a matter of principle and without giving due consideration to the wider context and the practical necessity of doing so. In furthering the overriding objective under the CPR, judges are necessarily required to be more proactive and interventionist. The particular need for proportionality involves a cost/benefit analysis where the expense of pursuing an action is weighed up against the advantage to be derived from the action, if successful.”

Choice of law in relation to laches

After the trial, Paul sought to argue that in fact the issue of laches would be governed by Scottish, not English law. The result of the English probate being set aside and a finding of Scottish domicile at death would entitle Paul to seek a Scottish grant of confirmation, and any recovery proceedings would have to be brought in Scotland in that capacity.

However, Paul had elected not to plead Scottish law in the proceedings. This meant that English law applied by default, following Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45. HHJ Williams therefore considered the issue of laches applying only English law.

Was the defence of laches made out?

During the course of the judgment, HHJ Richard Williams found as a fact that:

  • At the time of Ray’s death, Paul knew of the existence of the Will and that he was the sole beneficiary. He also knew a copy of the Will was in Ray’s house.
  • Immediately after Ray’s death, Paul told Lynne and her solicitor that he wanted his share of Ray’s estate to pass to her.
  • In June 2011 Ray’s employer had paid out death in service payments of £172,000 to each of Paul and Lynne. Had Paul inherited the whole of Ray’s estate, the entire Death in Service payment would have gone to Lynne.
  • Paul had failed to declare his right to inherit his brother’s estate in his divorce from his wife in 2012.
  • Paul had deliberately concealed his investigations into the will from Lynne up to the point of his first letter of claim in 2018.
  • Paul had never asked Lynne for a copy of the Will, instead engaging in extensive correspondence with the Australian lawyers and named executor, which took years to yield a copy.
  • Paul first issued probate proceedings in 2020, but failed to serve them in time and they then expired.
  • Lynne had not caused or materially contributed to the delay.

Against this background, the prejudice to Lynne was significant. She would be entitled to only a fraction of her late husband’s estate, with no prospect of a 1975 Act claim. She had also lost the opportunity to seek a larger share of the Death in Service benefit, of which Paul had received half. She had “sought to rebuild her life around the inheritance she received following the devastating loss of Ray including by renovating and selling the Property before purchasing a replacement home”.

By contrast, the prejudice to Paul was less significant. He would lose the opportunity of pursuing his claim to recover his brother’s estate from Lynne, but he had already received half of the Death in Service payment which he would not otherwise have received, and if any assets were recovered then his wife would be entitled to re-open their divorce settlement for material non-disclosure.

Taking account of all the circumstances, it would now be unconscionable for Paul to recover estate assets from Lynne, and so the defence of laches was made out. The claim was dismissed with costs.

Comment

Delay in the administration of estates is, unfortunately, all too common and it is well-known that there is no statutory period of limitation to challenge the validity of a will. However, there are a number of means by which late claims can be challenged. The more transparency can be offered early on in the estate administration, to give those wanting to challenge a will the opportunity to do so, the harder it will be to justify any later delay.

Where there are multiple jurisdictions involved, it is invaluable to have strong co-operation between the various legal teams, so that the defence is co-ordinated and robust. The decision to press for a preliminary issue trial, based upon English law, with live evidence on both sides, proved the right tactical choice.

Aidan Briggs acted for the successful defendant, instructed by John Darnton of BDB Pitmans LLP.

Practice areas: Trusts, Wills & Estates
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