“89. Witnesses may not generally, unless they are experts, compare specimen signatures with disputed signatures and express an opinion about the likeness or otherwise of the disputed signature to the true samples … However, evidence of identity of a person, or familiarity with a signature, is not regarded as expert opinion. A witness is entitled to say that is has seen a person's signature previously and the signature that is disputed is unlike the usual signature. Evidence of recognising a signature or, by parity of reasoning, not recognising a signature is admissible as the passage at para. 1-45 in Expert Evidence: Law and Practice 3rd ed. makes clear. At paragraph 1-046, the authors contrast the position concerning evidence of comparison, which they say is for an expert. In the case of recognition evidence, the weight to be given to it is a matter for the court.”
“It seems to the court that in the instant case the matter was properly dealt with. The fact remains that there is a very real danger where the jury make such comparisons, but as a matter of practical reality all that can be done is to ask them not to make the comparisons themselves and to have vividly in mind the fact that they are not qualified to make comparisons. It is terribly risky for jurors to attempt comparisons of writing unless they have very special training in this particular science. All possible was done, this court thinks, with great care and very fairly by the court in the instant case. It may well be that, despite it, the jury did try to make comparisons. That is really unavoidable and it should be accepted these days that Reg. v. Tilley [1961] 1 W.L.R. 1309 cannot always be in its literal meaning exactly applied; nevertheless every possible step and regard should be had to what was said by the court in that case, inasmuch as never should it be deliberately a matter of invitation or exhortation to a jury to look at disputed handwriting. There should be a warning of the dangers; further than that, as a matter of practical reality, it cannot be expected that the court will go.”
“Accordingly would you both please sign the Codicil’s [sic] in accordance with the enclosed instructions. Basically you must first of all obtain two witnesses who should not be persons that benefit under the terms of your Will or Codicil. When you have those two persons together with you, you can then date the Codicil in words and then sign the same where indicated. It is best that you use all your names or initials. The witnesses then must sign by giving their signature, name address and occupation as indicated. Would you then please return the Codicils to me so that I can check that this has all been carried out correctly. I will then supply you with copies for your records and placed the originals in my firm strongroom for safekeeping.”
“Thank you for returning your Codicil’s [sic] duly signed. These appear to be in order. I confirm that I have placed the original Codicils in my firm’s vault along with your Wills for safekeeping. For your records I enclose copies of the Codicils herewith”
“SIGNED by the said IVOR PERCY JAMES as a Codicil to his Will which bears date the Sixth day of March One thousand nine hundred and ninety eight in the presence of us present at the same time who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses”
“Further to your letter of14th October 2013 , I enclose copies of 2 letters written to Ivor and I by Stuart Capel of Pryce Collard Chamberlain, solicitors. The first was dated18th December 2002 enclosing the Codicil to Ivor’s Will and giving detailed instructions of how the Codicil was to be signed. This included the comment (line 4 of the 3rd paragraph) that ‘It is best that you use all your names or initials’. As a result, Ivor included his middle name ‘Percy’ in his signature, thinking that this was required. Please note that Ivor’s handwriting had been shaky after he had had his first stroke, before we arrived in Cornwall. The second letter was dated20th January 2003 , acknowledging receipt of the Codicil duly signed and enclosing a copy, together with a fee note (also enclosed). Accordingly, the Codicil was signed at some point between19th December 2002 and17th January 2003 , allowing for the post. I have a very vivid recollection of Ivor sitting at the head of the table on Boxing Day 2002. Dawn and Noel (Diane’s stepdad) walked up from Diane’s house, 2 doors down. Ivor signed the Codicil with Dawn and Noel standing beside him on Ivor’s right hand side, and they then signed as witnesses. Stuart Capel’s instructions were very clear about the signing procedure and I think that it is very unlikely that someone would sign to say that they had witnessed a signature if they had not. Also, there is absolutely no reason why the Codicil would have been dated on Boxing Day if it had not actually been signed on that day. For the absence of any doubt, Ivor was diagnosed with dementia by Dr May in Truro on11th March 2008 , some five years after the Codicil was signed and returned to Stuart Capel.”
“I stand by what I have said in my first statement to you. Firstley it was not on Boxing Day 2002 we had a Boxing Day at home due to Noel not being well after Christmas Day, he spent the whole day in bed, very sick. Also we did not stand by Ivor as he signed the will. He was at the top end of a very long dining table. We signed it first, the [sic] Christine walked around the table to Ivor where he looked at it and then must have tried to sign. I only first saw his writing when you sent me the copy of the will. I was sadley surprised at how he had signed, and knew Christine’s handwriting immediatley. Dianne has an entry in her 2002 diary that a lady who then lived in London called Suzy Greenslade stayed at her home that Christmas. We all had a very long Christmas Day there leaving at around midnight. Also Shaun our eldest son is checking his work computer to confirm he and his then partner were staying with us that year. Very vivid in our memories as Noel was very drunk and gave us a lot to rember. Also my brother came for New Year and remember’s the story’s that were told. When Noel read what Christine had stated he said (BOLLOKS) to standing by Ivor at the table. I could write a statment for Noel, he is declining in health, and is extremely deaf.”
“Dear Mr Noyce I rember [sic] Christine Ivors wife asking me and Dawn if we would sign the will. We went to his house and he was sitting at the top of the table from us. All we had to do was to sign this will which we did.”
“Christine’s own testamentary intentions were unclear during her lifetime…”
“Before coming to the arguments, I should state that it is common ground between all parties that there is no requirement in law that a will should be dated. Lack of a date or the inclusion of the wrong date cannot invalidate a will.”
“46. The position for which Mr East argues was clearly the case prior to the amendments of s.9 made by theAdministration of Justice Act 1982 . The position under the previous legislation was that there was clear authority that where either or both witnesses signed before the testator had signed or acknowledged the will, the will was invalid (see Williams, Mortimer & Sunnucks at 9-24). However, the basis for this conclusion was that the old wording of the act was that the testator’s signature ‘shall be made or acknowledged… in the presence of two or more witnesses… and such witnesses shall attest and shall subscribe the will….’ The word ‘shall’ in this context was held to denote a time sequence, so that it was read as ‘shall then’ (Re Allen (1839) 2 Curt 331). The amendments made to s.9 in 1982 removed the word ‘shall’ from this section and reworded it. The editors of Mortimer, Williams and Sunnucks (at 9-25) express the view that this rewording removed the concept of time sequencing. The express intention seems to have been that three things are required – the testator must sign or acknowledge his signature in the presence of two witnesses, and each witness must either sign or attest to the testator. If that is correct, the fact that Mr Balraj Singh signed the will before the testator acknowledged the will before two witnesses does not invalidate the will, and the fact that he did not reacknowledge his own signature after that event is neither here nor there. This is exactly the conclusion which the Deputy Master came to in paras 119-121 of his judgement, and I have nothing to say about his conclusion beyond the fact that I agree with it.”
“In the case of deaths on or after1 January 1983 , s.9(d) as substituted provides that a will made in any of the circumstances listed above will now be valid, provided each of the witnesses acknowledges his signature to the testator after the testator has made or acknowledged his signature.”
“the fact that Mr Balraj Singh signed the will before the testator acknowledged the will before two witnesses does not invalidate the will, and the fact that he did not reacknowledge his own signature after that event is neither here nor there.”
“2. … He then signed the will and his signature was witnessed by two nurses …”
“18. I begin with some general observations. First, as Mr Warwick appearing for Michael pointed out, all four of the conditions in section 9 must be satisfied before a will can be said to have been validly executed. Second, there is no discretion on the part of the court to override compliance with these conditions in order to give effect to the putative testator's intentions or wishes. Third, the conditions set out what is in effect the temporal sequence for their fulfilment. Fourth, since the validity of a will necessarily arises after the principal actor is dead, there are powerful policy reasons for insisting on their fulfilment. Fifth, the starting point for understanding the requirements of section 9 must be the words of the section itself”
“The presumption that everything was properly done (omnia rite et solemniter esse acta), arises whenever a will, regular on the face of it and apparently duly executed, is before the court, and amounts to an inference, in the absence of evidence to the contrary, that the requirements of the statute have been duly complied with.”
“The codicil propounded is ex facie perfectly regular as regards all the formalities of signature and attestation. The presumption omnia rite esse acta, therefore, applies to the codicil. But the conduct of the testator, both in the preparation of the codicil and in the calling together of his witnesses, shews an anxious and intelligent desire to do everything regularly. That fact strengthens the presumption. That presumption is not, in my opinion, rebutted by the evidence of the two witnesses who think that the testator did not sign in their presence, for these witnesses were somewhat nervous and flurried on the occasion, and are accordingly confused and forgetful in the witness-box. They were witnesses about whose honesty the learned President of the Probate Division entertained no doubt, but on whom he, who saw and heard them, felt that he could not rely to rebut the presumption which arises from the admitted facts of the case. The decisions cited in argument, and referred to by the Lord Chancellor, shew that the judges who have presided over the Court of Probate have long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced, where no suspicion of fraud has occurred. In so doing they have, in my opinion, acted rightly and wisely.”
“42. It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has ‘the strongest evidence’, in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness.”
“7. There is good reason for the requirement that one must have ‘the strongest evidence’ to the effect that a Will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the Will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the Will represented the testator's intention. Where a Will, on its face, has been executed in accordance with the section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the Will was not properly executed. 8. The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own. 9. Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, as my Lord, Mummery LJ, pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in usual circumstances, have been of particular significance. 10. The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law.”
“A person who propounds for probate an alleged will, and who is unable to produce it, or any copy or draft of it, or any written evidence of its contents, is bound to prove its contents and its due execution and attestation by evidence which is so clear and satisfactory as to remove, not all possible, but all reasonable doubts on those points. If he can do this, he is entitled to probate, as is shewn by the case of Sugden v. Lord St. Leonards.”
“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
“64. Fifthly, laches is an equitable doctrine, under which delay can bar a claim to equitable relief. In the Court of Appeal, Mummery LJ said that there was ‘no requirement of detrimental reliance for the application of acquiescence or laches’ -[2008] EWCA Civ 287 , para 85. Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239, the Lord Chancellor, Lord Selborne, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay … the validity of that defence must be tried upon principles substantially equitable.’ He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”
“79. The argument based on laches faces two problems. The first is that, as pointed out by David Richards J, laches only can bar equitable relief, and a declaration as to the existence of a long term property right, recognised as such by statute, is not equitable relief. It is arguable that a declaration should be refused on the ground of laches if it was sought solely for the purpose of seeking an injunction or other purely equitable relief. However, as already mentioned, that argument does not apply in this case. Secondly, in order to defeat Mr Fisher’s claims on the ground of laches, the respondents must demonstrate some ‘acts’ during the course of the delay period which result in ‘a balance of justice’ justifying the refusal of the relief to which Mr Fisher would otherwise be entitled. For reasons already discussed, the respondents are unable to do that. They cannot show any prejudice resulting from the delay, and, even if they could have done so, they have no answer to the judge’s finding at[2006] EWHC 3239 (Ch) , para 81, that the benefit they obtained from the delay would outweigh any such prejudice.”
“that the plaintiff, having taken no steps, from June, 1894, until the present action, to dispute the orders in Chancery under which the estate had been distributed, had been guilty of such laches that she could not maintain a suit in Chancery to follow the estate into the hands of those who had received it; and ought not, therefore, to be allowed to maintain this suit to revoke the letters of administration for a useless purpose.”
“It is clear that there is a broad distinction between the position of a person who had no notice of the proceedings in an administration suit in which a fund has been distributed, and who, upon becoming aware of the facts, seeks to make the recipients of the fund refund, and that of a person who, with notice of such proceedings and with knowledge of the questions which can be raised therein, neglects to contest the matters upon which his rights, if any, depend, and allows the fund to be distributed; and then, after a time, seeks to reopen the whole matter. In the one case, the claimant has done nothing which ought to affect his rights against the recipients ; whereas, in the second, it would, in my opinion, be inequitable to allow him to come forward and compel the recipients to refund, after he has lain by and allowed them to act upon the belief that the fund has been properly distributed among them, and when there is little or no doubt that their positions and obligations have been affected by acting, as they apparently would be entitled to do, in such belief. In the present case it is clear that the plaintiff was aware of the Chancery proceedings as early as 1893, and no steps whatever were taken by her except those upon the summons which I have already stated. It is also clear that the plaintiff was aware, at the time of the Chancery proceedings, that there was a question as to the legitimacy of the said Emma Broughton, through whom the parties, who have been found entitled to the fund, claimed relationship to the deceased.”
“ … as I have already pointed out, the plaintiff was always aware of the question of legitimacy which could be raised in connection with the relationship of those who have been found next of kin to the deceased ; and, notwithstanding that knowledge, she took no steps, for three years at least after the money had been distributed amongst the next of kin, to question the Chancery proceedings and the orders made therein. In my opinion, the plaintiff has practically acquiesced in the Chancery proceedings, and has been guilty of such laches as to disentitle her, according to the authorities to which I have referred, to maintain a suit against those who have received the estate to compel them to refund. Therefore, as the only object of the present suit to revoke the letters of administration and obtain a grant in her own favour is to assist her in an attempt to recover the funds which have been distributed, it follows that this Court ought not to assist the plaintiff, who has been guilty of laches in the way I have indicated, to obtain a grant which would be useless to her. This point of laches being decided against the plaintiff, it is unnecessary that any other questions which might be raised in the case should be gone into. In my judgment the suit must be dismissed with costs.”
“ … she wants this revocation for the purpose of asserting her right. In other words, she wants to follow the assets into the hands of the persons who have got them. I do not myself see any difficulty in her commencing an action for that purpose in the Chancery Division. I hope that I shall not be supposed to advise her to do it. It appears to me that her case there would be almost, if not utterly, hopeless; but still, theoretically, she could do that, although the letters of administration had not been revoked.”
“Now, if her case is hopeless, and that is the view which Gorell Barnes J. has taken, because, having looked into the matter, he says, ‘You cannot succeed in getting what you want, and, inasmuch as you will not succeed in getting what you want, I will not revoke the letters of administration,’ I think that he was perfectly justified in dismissing the action. I do not say that it was frivolous or vexatious. Still less do I think that technically there is anything like res judicata.”
“Secondly, there is the question of laches. The case of Mohan v. Broughton is very much stronger on the facts than the present case. In the course of his judgment in that case Gorell Barnes J. deals with this question of laches. He says [at 218]: ‘It is clear that there is a broad distinction between the position of a person who had no notice of the proceedings in an administration suit in which a fund has been distributed, and who, upon becoming aware of the facts, seeks to make the ion recipients refund, and that of a person who, with notice of such proceedings and with knowledge of the questions which can be raised therein, neglects to contest the matters upon which his rights, if any, depend, and allows the fund to be distributed; and then, after a time, seeks to reopen the whole matter.’ There is no evidence in this case that the parties have distributed the assets among themselves. In a later part of his judgment Gorell Barnes J. says [at 220]: ‘ ... and, notwithstanding that knowledge, she took no steps, for three years at least after the money had been distributed amongst the next of kin, to question the Chancery proceedings and the orders made therein.’ The only alteration in the position of the parties that can here be alleged is that during the wife's survivorship of her husband, a period of about seven weeks, no proceedings were taken, and that owing to her death her evidence is not now available, but this was not relied upon as being a delay of such a character as amounted to laches. One matter relied upon was the taking out of double probate, but I think the plaintiff has on the assumed facts as stated given a satisfactory explanation as to why he made the affidavit. On the whole I cannot say the facts in this case are such that I am able to hold that there has been such laches that it would be inequitable for the plaintiff to be allowed to contest the validity of this will.”
“(1) Is laches on the part of the plaintiff of his predecessors in itself a bar to proceedings in the Probate Court apart from its effect on any subsequent and consequential proceedings in Chancery or elsewhere?”
“that, although he would, if necessary, eventually contend under No (1) above that laches would be a defence to the probate proceedings themselves, he had not sufficient authority for this proposition to justify him in asking us on this ground to support the learned judge's order dismissing the action as vexatious. He based his whole case on the ground that on a summons to dismiss a probate action as frivolous and vexatious under its inherent jurisdiction the court will investigate the facts, and, if satisfied that laches would bar any subsequent proceedings in Chancery for which purpose the action had been brought, will dismiss the action in limine as frivolous and vexatious. His authority for this proposition was Mohan v Broughton … ”
“Having regard to the facts that the jurisdiction to dismiss in limine is one which is sparingly exercised and then only in exceptional and clear cases, I have come to the conclusion, having regard to the terms of the letter of11 September 1945 , the state of the authorities with regard to laches as applied to probate actions, and the fact that some of the material facts with regard to laches are in dispute, that the defendants have not been able to discharge the heavy burden that lies on them to show that this action should be dismissed as frivolous and vexatious and an abuse of the process of the court.”
“For the purposes of the present appeal counsel for the defendants has not thought it right, in the absence of any authority directly in point, to contend that this delay—even though amounting to such laches as would in a court of equity be a bar to any proceeding to follow and recover property—is a bar in the Probate Court to a claim to establish a will assumed to be valid, or that the statutes of limitation apply to defeat such a claim. It follows, therefore, that the case of the defendants in this court for summary dismissal of the action must rest on the proposition that (as Willmer J held) the plaintiff, even though he obtained his grant, could not possibly succeed either in his capacity of personal representative of the testator or as beneficiary under the testator's will in deriving any practical advantage—ie, in recovering any property from the defendants or from any other persons. … And on the main proposition advanced by the defendants (viz., that the court may, in the exercise of its inherent jurisdiction, dismiss an action in limine where it is shown that though the action itself may succeed no useful or fruitful result can thereby be achieved by the plaintiff) I find myself, for my part, in agreement with Willmer J. For, in approaching the question whether the action is frivolous or vexatious, the court is entitled to ask of the plaintiff, what is his object? If it is apparent that the plaintiff can achieve no real or material advantage for himself or for anyone else from his success, then I think that the court may fairly hold his proceeding to be, in truth, vexatious. I think further that the court is properly entitled to take account of the fact that to any proprietary claim which the plaintiff may make either the relevant statutes of limitation or laches would be a conclusive defence, if, in all the circumstances, it is plain that such pleas will be raised though the time for raising them has not yet, strictly, arrived.”
“In these circumstances, the defendants ought not, in my judgment, to succeed in limine in preventing the plaintiff from seeking to prove the validity of the will” (at 76A). But he also relied on a second ground, by holding (at 76B) that: “Apart from the objection outlined above, it is, in my view, not established by authority that the mere existence of laches such as would bar a claim in subsequent proceedings would justify the court in taking the drastic step of dismissing the action in limine. … [T]here are grave difficulties in determining on affidavit evidence whether the facts proved against the plaintiff establish laches against him.”
“I see great difficulty in applying the de minimis principle, even to the tomb alone, so as to justify the dismissal of the action in limine. In my judgment, the appeal succeeds … ”
“My general conclusion from the authorities cited to me, in particular In re Coghlan. decd. [1948] 2 All E.R. 68 is that they tend to support the view 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 or vexatious or is for other reasons an abuse of the process of the court. The apparent absence of any authorities specifically affirming the existence of the alleged power which the third defendant now invokes itself tends to suggest that the power does not exist. I have canvassed the question at some length in deference to the careful and interesting arguments of counsel. In the end, however, I do not think it necessary finally to decide whether the court has the power to' strike out an action of this nature solely on this ground, For I am satisfied that, even if the power exists, it should not be exercised in favour of the third defendant by the court in its discretion on the facts of the present case … ”
“24. While it is true that Slade J went on to hold that there was no prior authority supporting the case that delay in institution might warrant the striking out of a probate claim, he made no comment, one way or the other, on the soundness of counsel’s submission. In my judgment, in particular after the introduction of the Civil Procedure Rules, there can be no such special rule applicable to probate cases, derived from any supposed sanctity of a grant of probate.”
“50. In my view the critical factors identified by the Court of Appeal in allowing the appeal in Coghlan and distinguishing Mohan were: a. The absence of pleadings/a trial of the issue of laches; and b. The existence of unadministered assets of the estate (the family tomb).” 51. Neither of those distinguishing features exist in the present case … ” a. The absence of pleadings/a trial of the issue of laches; and b. The existence of unadministered assets of the estate (the family tomb).”
“59. 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. 60. In conclusion, (and subject to the question of the interplay with Scottish law dealt with next): a. The assets of Ray’s estate were distributed some considerable time ago; b. The sole purpose for seeking revocation of the grant of letters of administration to Lynne is to then enable Paul to seek to recover from Lynne the assets she received from Ray’s estate; c. Any recovery claim against Lynne would be equitable relief against which Lynne would be entitled to raise the defence of laches; d. The defence of laches has been fully pleaded and responded to in the parties’ statements of case; e. If the recovery claim against Lynne is bound to fail on the ground of laches, it would be wholly contrary to the overriding objective of saving expense and avoiding delay to permit the probate claim to continue in circumstances where it would serve no useful purpose; f. Therefore, it is entirely understandable that, in exercising its case management powers to further the overriding objective, the court ordered, with the consent of the parties, that the issue of laches be tried as a preliminary issue; g. The court has now read and heard evidence/argument to enable it to determine the preliminary issue of laches; and h. In the event that I determine that the laches defence is made out, I would be entitled and indeed bound to dismiss a probate claim that has thereby been rendered utterly academic. To otherwise allow the probate claim to proceed would simply expose the parties to significant expense for no discernible benefit.” a. The assets of Ray’s estate were distributed some considerable time ago; b. The sole purpose for seeking revocation of the grant of letters of administration to Lynne is to then enable Paul to seek to recover from Lynne the assets she received from Ray’s estate; c. Any recovery claim against Lynne would be equitable relief against which Lynne would be entitled to raise the defence of laches; d. The defence of laches has been fully pleaded and responded to in the parties’ statements of case; e. If the recovery claim against Lynne is bound to fail on the ground of laches, it would be wholly contrary to the overriding objective of saving expense and avoiding delay to permit the probate claim to continue in circumstances where it would serve no useful purpose; f. Therefore, it is entirely understandable that, in exercising its case management powers to further the overriding objective, the court ordered, with the consent of the parties, that the issue of laches be tried as a preliminary issue; g. The court has now read and heard evidence/argument to enable it to determine the preliminary issue of laches; and h. In the event that I determine that the laches defence is made out, I would be entitled and indeed bound to dismiss a probate claim that has thereby been rendered utterly academic. To otherwise allow the probate claim to proceed would simply expose the parties to significant expense for no discernible benefit.”
“2-01. The law relating to executors and administrators is of some complexity. In understanding that law and the nature of the formidable duties owed by an executor or administrator, it is useful to understand something of the history of probate jurisdiction.”
“20. Subject to the provisions of this Act the High Court shall, in relation to probates and letters of administration, have the following jurisdiction (in this Act referred to as ‘probate jurisdiction’), that is to say:— (a) all such voluntary and contentious jurisdiction and authority in relation to the granting or revoking of probate and administration of the effects of deceased persons as was at the commencement of the Court of Probate Act, 1857,vested in or exerciseable by any court or person in England, together with full authority to hear and determine all questions relating to testamentary causes and matters: (b) all such powers throughout England in relation to the personal estate in England of deceased persons as the Prerogative Court of Canterbury had immediately before the commencement of the Court of Probate Act, 1857, in the Province of Canterbury or in the parts thereof within its jurisdiction in relation to those testamentary causes and matters and those effects of deceased persons which were at that date within the jurisdiction of that court: (c) such like jurisdiction and powers with respect to the real estate of deceased persons as are hereinbefore conferred with respect to the personal estate of deceased persons: (d) all probate jurisdiction which, under or by virtue of any enactment which came into force after the commencement of the Act of 1873 and is not repealed by this Act, was immediately before the commencement of this Act vested in or capable of being exercised by the High Court constituted by the Act of 1873: and the court shall, in the exercise of the probate jurisdiction perform all such like duties with respect to the estates of deceased persons as were immediately before the commencement of the Court of Probate Act, 1857, to be performed by ordinaries generally or by the Prerogative Court of Canterbury in respect of probates, administrations and testamentary causes and matters which were at that date within their respective jurisdictions.”
“(1) … the High Court shall … have the following probate jurisdiction, that is to say all such jurisdiction in relation to probates and letters of administration as it had immediately before the commencement of this Act … (2) … the High Court shall, in the exercise of its probate jurisdiction, perform all such duties with respect to the estates of deceased persons as fell to be performed by it immediately before the commencement of this Act.”
“Where the opposing party has been in a situation which rendered it impossible or difficult for him to have proceeded earlier; if he has been absent from the country, a minor, under imbecility, he may be admitted. But without reason, and where there are such strong reasons as there are here to shew that he was not in such a state of incapacity as to have prevented him, and further that he could not be ignorant of all the circumstances relating to the deceased, from the suit in Chancery soon after the probate was taken out, the case is different. By his answers [Lewis] admitted both the will andthe probate, a decree wasmade operating on the lapsed legacy, and he acted underthat decree not upon an intestacy, andcontinued to receive the interest forfive years together – not offering to bring up what he has received, but stating only that he had strong reasons to doubt, but did not knowthat he could call them in question after probate – ignorance ofthe law is no excuse, hut this is so plain, and having advice as to thedeceased's affairs by the suit in Chancery, I cannot admit this.”
“In the present case the deceased has been dead six or seven years – but here a suit has been instituted, the will has been proved per testes, and solemn proceedings have been had between competent parties in the same interest, and averring the interest of the parties who now wish to institute proceedings afresh, and the judgment of this Court has been affirmed by that of the Court of derniere resorte [ie the Delegates]. Newell and Weeks have not only been privy to all these proceedings; but substantially have been parties themselves to this suit, quite as much as if they had actually appeared – Spectators to the whole, and privy to the whole, if they had been dissatisfied, they might have intervened at any moment of the proceedings. This right of intervention, coupled with their privity to the proceedings, is decisive to shew that they can have sustained no prejudice by not having been before cited, and not having before given a formal appearance. In the former cause they had not only a right, but it was their duty to intervene if they meant not to abide by the decision – their interests were directly affected; if the will had been set aside, they would have established their claim. The lis pendens served as a public notice on which they were bound to act.”
“Much is insisted in the protest on the brother's acquiescence in the executor's taking probate of the will. Now, without at all adverting to the grounds upon which that acquiescence is said to have been founded, I may observe that a mere acquiescence (that is, an acquiescence accounted for by no special circumstances) on the part of the next of kin, to an executor's taking probate, is no bar whatever to his calling it in and putting the executor on proof of the will. If it were, no probate could be called in by a next of kin, unless immediately upon its becoming known to him that- probate had been taken – the very contrary of which is matter of every day's experience. Nor, again, is acquiescence a bar – even though accompanied, as in this case, by receipt of a legacy, under the very will sought to be controverted. This has been determined in a great variety of cases. … I hold that I am bound, in overruling this protest, to direct the legacy to be brought in before the brother proceeds. The bringing in of his legacy will be a test of the sincerity of his opposition to the validity of the will; and will prove it to be not merely vexatious. At the same time it will be a security to the executor, in case of the next of kin being condemned in costs: for I hold that a next of kin (or the executor of a former will, for the same reasons apply in both cases) who calls in a probate once taken, even though in common form, and puts the executor upon proof, per testes, of his will, does it at the peril of costs – his ordinary exemption from liability to costs upon such occasions not extending to one of this particular description. The case of nearest resemblance to the present, in which a protest was admitted, and the executor dismissed, is that, which has been cited in the argument, of Hoffman and White v. Norris (see 2 Phillimore, 230). At the same time, though similar to it in one important feature, it is distinguished from it in a great variety of particulars. It is true that in that, as in this case the will had never been propounded, and probate had been taken only in common form. In that case, however, there had been an acquiescence, not even attempted to be accounted for by any special circumstances, of nine years. In a suit, too, in Chancery, arising out of that will soon after probate, Hoffman, the next of kin taking out the citation, in his answers had admitted both the will and the probate.”
“Upon the whole, I am clearly of opinion that it would not have been competent to the mother of the deceased, had she been living, to have put the executor on proof of this will, after an interval of seven years, upon any such grounds as are now suggested. The mother was the deceased's sole next of kin. At the time when probate was taken by the executor she apparently entertained no doubts of the validity, although she might, and no doubt did, regret the existence of this will: but even supposing that she did entertain any such doubts, she was at liberty to waive those doubts; and her conduct throughout, already described, to the period of her own decease, nearly amounts, I think, to a full waiver of them. She urges the executor-to take probate; she is a party to its being taken; she acquiesces in the will, and is even active in giving it effect in a variety of ways. The executor, it has been said in argument, should have proved this will, per testes, at the time: but against whom was he to have done this, and to what effect? The mother, the sole next of kin, and who alone had a right to oppose, was before the Court, sustaining the will; and what could a mere examination of the subscribed witnesses to the factum of the will have done in support of it? they would doubtless have proved the mere factum of the will; but this, the mere factum of the will, as it ever was, so it still is, unquestioned by any party. Could, however, her representative do, in June, 1824, what the mother of the deceased herself, if then living, can not have done? If he could, as already said, this can only be upon some special shewing. Of these two suggestions, the first is not only without proof; it is against proof: it is in proof that the mother acted with the full knowledge and apprehension of her own legal rights, in the event of her daughter's intestacy; and that she was a sensible woman, well acquainted with money matters and accounts, and perfectly conversant with matters of business … As to that other suggestion, of any such advice having been given her by the executor at the time to induce her not to contest the will, it is a suggestion equally against proof as the first, and it is one still more destitute of probability.”
“Now I fully admit that executors are bound to prove a will by solemn form of law, where they are called on to do so by those entitled in case of an intestacy; and that under common and general circumstances neither lapse of time, nor the receipt of a legacy, nor acquiescence in the will, will be sufficient to debar them that right – but after so great a lapse of time as in this case – fourteen years after the transaction in question, and ten years after the will has been declared to be well proved in Chancery – may parties not be barred of their remedy if there be no reasonable ground accounting for the delay?”
“The ground or principle on which the Court proceeded in that case was, that the party was not barred by the lapse of time, if he could shew good reason why he had not proceeded at an earlier period; it affirms this principle, that if he does not shew good cause, this Court, unless pressed by superior authority, will not allow him to call in a will after such a lapse of time.”
“I do not wish it to be understood that in this case I am at all trenching upon the principle of the full right of next of kin to call upon executors to prove a will in solemn form, notwithstanding there shall have been lapse of time – notwithstanding acquiescence – notwithstanding the receipt of a legacy; but that the Court proceeds on this ground, that in this case the Court of Chancery. on the express petition of the parties, and not on a mere admission in answer, has declared this will to be well proved. I am asked to undo all that has been done by the Court of Chancery. I am of opinion that this case is fully distinguished from the cases cited, in which the parties were allowed to proceed after lapse of time, to call upon executors to prove in solemn form of law. Being of this opinion, I shall pronounce for the prayer of the executors, which objects to the enforcement of this decree against them, and shall dismiss them from its effect.”
“It would be splitting hairs to attempt to distinguish this case from the case decided by Sir J. Nicholl [ie Newell v Weeks]. Probate must issue notwithstanding the caveat and the defendant must be condemned in costs.”
“I think that Lord Penzance [formerly Sir James Wilde, a former baron of the Exchequer, in Wytcherley v Andrews (1872) LR 2 PD 327] clearly intended to lay down that, in the Probate Court, the rule of a person being bound by proceedings to which he was no party depends on his cognizance of the proceedings, and his capacity to make himself a party; and further than this I do not think the authorities go. I think, therefore, that as the present plaintiff could not, so far as he knew, have intervened in the proceedings in 1887, though fully cognizant of them, he cannot be held bound by them. There are two further points to be considered. First, is the case now intended to be set up against the will so clearly frivolous that to put it forward would be an abuse of the process of the Court ? The plaintiff says in his affidavits that what he purposes to prove is not a repetition of the case set up in 1887, but an allegation that the will is a forgery. I will not examine in detail the evidence by which he suggests he will seek to prove this, because it may be my duty to try the case. I will only say that I cannot, on the evidence as it stands, hold it to be frivolous. Secondly, is the evidence by which it is proposed to shew that there was an earlier will of 1876, and that under it the plaintiff took a benefit as legatee, frivolous ? This lies, of course, at the foundation of the plaintiff's present proceedings; because, inasmuch as he cannot assert any right as next of kin, or as entitled in distribution, he has no interest to oppose the will of 1883, unless he can establish a former will in his favour. I have had doubts on this point, especially because, apparently, no will of 1876 is likely to be forthcoming, and the plaintiff will have to produce strong evidence of its execution and contents. … It is so important not to shut out a litigant from what may, even possibly, be the assertion of a just right, that I cannot take on myself, at this stage, to say that this part of the case is so clearly frivolous that I should stop the proceedings.”