Martyn James v Lorraine Anne Scudamore & Ors.

A regular attestation clause gives rise to a strong presumption that a will or codicil was duly executed. The presumption applies equally to a copy admitted to probate. Under the Wills Act 1837, the testator’s signature or acknowledgment must precede the witnesses’ attestation, although the witnesses need not attest in each other’s presence. An incorrect or missing date does not invalidate a testamentary document. Probate law also recognises distinct rules concerning waiver, acquiescence and delay. Unjustified delay, particularly where it causes detrimental reliance or loss of evidence, may bar a probate challenge. Where revocation would serve only to pursue an equitable claim already barred by laches, the probate claim may be dismissed as academic. The claim was dismissed.

This was a first-instance probate claim concerning the estate of Ivor Percy James. The claimant accepted the validity of Ivor’s 1998 will but challenged a 2002 codicil which replaced his second wife’s life interest in the matrimonial home with an absolute interest.

The claim sought revocation of the existing probate and a fresh grant limited to the will. The claimant alleged defects in the codicil’s execution, including the order and date of signing, and alleged that the signature had been completed by Ivor’s wife. The defendants relied on the apparent regularity of the codicil, presumptions of due execution and delay. The central issues were whether the claim was barred by probate or equitable principles concerning delay and whether the codicil had been validly executed.

The claim was dismissed.

1. Execution and burden of proof. The person propounding a will or codicil bears the legal burden of proving validity. A testamentary document regular on its face, with a completed attestation clause and the apparent signatures of the testator and witnesses, attracts a strong presumption of due execution. Only the strongest evidence will ordinarily rebut it. The same presumption applies where probate has been granted on a copy of a missing original.
2. Temporal sequence. Section 9 of the Wills Act 1837 requires the testator’s signature or acknowledgment to be made in the presence of two witnesses present together. Each witness must then attest and sign, or acknowledge the witness’s signature, in the testator’s presence. The 1982 amendments removed any requirement that the witnesses attest in each other’s presence, but did not permit a witness to attest an unsigned testamentary paper. The judge declined to follow Sangha v Sangha’s Estate [2022] EWHC 2157 (Ch) on that point and accepted the considered dictum in Barrett v Bem [2012] Ch 573. A date, or a correct date, is not required.
3. Handwriting evidence. A witness who is familiar with a person’s handwriting may give recognition evidence as a matter of fact. Lay comparison of specimen signatures with a disputed signature is expert opinion and is not generally admissible from a non-expert. The weight of recognition evidence remains for the court, which must take account of the danger of lay comparison.
4. Delay and probate laches. The earlier law of the prerogative courts remains applicable unless displaced by statute, the Civil Procedure Rules 1998 or later authority. Probate rules concerning waiver, acquiescence and estoppel are distinct from abuse of process. Explicable delay, even with receipt of a legacy, will not generally suffice. Unjustified delay, especially when coupled with conduct amounting to waiver or detrimental reliance by others, may bar a probate claim. Relevant matters included the claimant’s knowledge, the length of delay, intervening acts, distribution of the estate and loss of evidence.
5. Application. The claimant had obtained legal advice in 2013 but did not proceed until after Christine’s death and the death of one attesting witness. In the meantime Christine made a new will, administered and distributed Ivor’s estate, and relevant evidence was lost. The claim was therefore barred by the probate doctrine concerning delay. Alternatively, any equitable recovery claim was barred by laches, making revocation of the probate without useful purpose. In any event, the presumption was not rebutted and the codicil had been properly executed. The claim was dismissed.