The answer to this question depends on how long you are planning to wait and the reason(s) for you to wait. In the recent case of Stephenson and Another v Daley [2026] EWHC 53 (Ch), the Court reaffirmed that unjustified delay or delay coupled with acts amounting to waiver or detrimental reliance (such as estate distribution) may bar probate claims. Waiting for the other party to act is not a good reason for the delay.
Stephenson and Another v Daley [2026] EWHC 53 (Ch)
Background
The deceased died on 25 October 2016 with a will dated 12 July 2016 (Will).
The Will appointed the deceased’s partner, Malcolm Roocroft (Malcolm), and the Will drafter, Stephen Davies (Stephen), as the executors and left her entire estate, including a property that she solely owned, to Malcolm.
The deceased never had a will before the Will. On 8 July 2016, she made a call to her solicitors and instructed them to draft a will leaving her entire estate to Malcolm, who had been asking the deceased to make a will to benefit him and might have initiated the call.
The deceased’s two sons (i.e. the Defendants) quickly entered caveats and sent a letter of claim to Malcolm after the deceased’s death. The parties took part in mediation but failed. The caveat remained in place, but no claim was brought by the Defendants to set aside the Will. Malcolm did not take any further action either.
Malcolm died on 28 November 2024. The executors of Malcolm’s estate (i.e. the Claimants) brought this claim against the Defendants to propound the Will. The Defendants counterclaimed to set aside it for lack of knowledge and approval.
Decision
The Court found that the deceased knew and approved of the contents of her Will despite the Will being a departure from the deceased’s previous stance on wills because:-
- There is no suggestion that the deceased could not read or had become incapable of reading it;
- The fact that her address had been misspelt did not mean that she had only read it in part;
- Malcolm’s involvement in the will-making process did not indicate a lack of knowledge and approval (and the claim pursued was not regarding undue influence);
- There was no evidence to show that Stephen forged/backdated the Will file notes; and
- Even if there was lack of knowledge and approval, this claim would still be barred by the equitable doctrine of laches, not least because there was no justification for the delay. During the long almost-7.5-year delay, the key witness Malcolm had died, the surviving witness’ recollections had weakened and parts of the Will file might have been lost (as Stephen’s law firm closed down on 21 May 2023). The Court was deprived of this evidence.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.