Not-So-Good Things Come to Those Who Wait… More on Undue Delay as a Bar to Probate Claims: Stephenson v Daley [2026] EWHC 53 (Ch) and Bowerman v Bowerman [2025] EWHC 2947 (Ch)

24/02/2026

By Michael Selway

1 – Over the last few months, the issue of undue delay and its ability to bar probate claims has
come before the courts again in Bowerman v Bowerman and Stephenson v Daley. These cases
are notable for being perhaps the next to follow case law from 2023 in which, maybe for the
first occasion in modern times, it was held that two doctrines of laches apply in relation to
probate claims, so that, in essence, such claims can be barred for undue delay in making them.

2 – First, in Re McElroy [2023] EWHC 109 (Ch), particularly at paragraph [60], the court recognised
that a probate claim may be dismissed if it is made for the purpose of claiming equitable relief,
especially to recover estate assets from beneficiaries, when that underlying claim would be
barred by the equitable doctrine of laches and so the probate claim would be academic only.

3 – Then, in James v Scudamore [2023] EWHC 996 (Ch), it was held, further to what had been held
in McElroy, that there is law in the nature of a probate version of the doctrine of laches which
could bar the probate claim itself. The judge said, at paragraph [197], that: “Explicable delay,
even when coupled with taking a legacy under a will proved in common form, is not generally
enough to bar a claimant from taking probate proceedings… But unjustified delay, possibly on
its own… and certainly when coupled with acts amounting to waiver of the claimant’s right,
will bar the claim… Similarly where the delay has led to others’ detrimental reliance on the
inaction, such as distribution of the estate…”.

Bowerman v Bowerman

4 – Bowerman concerned the purported will of John Bowerman dated 22 April 1999, as well as
the will of his wife Jean. Focusing on John’s case for present purposes, his purported will
appointed two of his and Jean’s sons – Ben and David – as executors, and named Ben and Jean
as beneficiaries. The claimant, Alastair, was the other son of John and Jean.

5 – Alastair’s claim, commenced on 5 August 2022 originally as a claim for an account but
subsequently amended, challenged the validity of John’s purported will on the grounds of lack
of testamentary capacity and want of knowledge and approval. Ben defended the claim, denying those grounds and also asserting that the claim was barred by laches, and counterclaimed an order pronouncing in solemn form for the purported will.

6 – In the circumstances of the case, Alastair had been aware of the terms of John’s purported will
at the time he made it in 1999. Before it was made, a copy of a draft will had been sent to
Alastair’s solicitor, who had discussed it with John’s solicitor. After it was made, Alastair’s
solicitor sent him a copy of the draft will and discussed it with him.

7 – John died on 20 September 2004. On 26 October 2004, Jean, David, Ben and Alastair met at
John’s solicitor’s offices, where the contents of the purported will were discussed. John’s
solicitor told Alastair that John had been capable of making the purported will, which Alastair
accepted – and he said that he had no intention of challenging the purported will. On 22
August 2005, probate of John’s purported will was granted to Ben and David; and they
subsequently completed the administration of his estate. Over the following years, Alastair
obtained legal advice on several occasions, without bringing his claim until 2022.

8 – The court found, as claimed by Alastair, that John did not have capacity to execute his
purported will, nor know and approve its contents. Despite these findings, however, the court
dismissed Alastair’s claim challenging John’s purported will and pronounced for it in solemn
form on the basis that Alastair’s claim was barred by laches.

9 – The court reasoned, at paragraphs [109]-[113], as follows:

109. As set out above, Alastair knew the contents of John’s 1999 will around the time it was
     made. Alastair confirmed this in his letter dated 16 January 2017 to the administrator, in which
     he referred to “conversations surrounding the changing of my parents’ wills”.
110. In any event, he was told its contents shortly after John died, at the meeting (referred to
     in paragraph 85 above) on 26 October 2004. The length of the delay in bringing the claim is
     therefore 18½ years.
111. As set out above, Alastair took legal advice in relation to his parents’ estates but took no
     steps to challenge the wills. He sought to explain this by reference to his health (he had a
     spinal operation in 2006) and the Restraining Order [made against him in respect of Ben in
     2015]. As to the first, this cannot in my judgment explain the lengthy period before the
     challenge to the wills was brought. As to the Restraining Order, this specifically exempted
     communication through solicitors and did not therefore prevent a claim from being brought.
     I consider therefore there is no proper explanation for the delay in bringing the claim and it is,
     in the words of James v Scudamore, inexplicable.

112. Alastair, has not therefore, in my judgment, shown any justification for his delay in
     challenging John’s 1999 will. Coupled with this is his express disavowal at the meeting on 26
     October 2004 of intending to challenge the will. A further factor is that in reliance on that
     disavowal, John’s executors have administered his estate. This detrimental reliance also bars
     the claim.
113. In addition, if John’s 1999 will were declared invalid, that could only be given effect by a
     claim against Jean’s estate to recover the assets she received under the will. That recovery
     claim would be a claim for equitable relief, which would itself be bound to fail on the ground
     of laches. As in McElroy (see para 60), it would be contrary to the overriding objective of saving
     expense and avoiding delay to allow the challenge to John’s will in circumstances where it
     would serve no useful purpose.

Stephenson v Daley

10 – Stephenson concerned a claim to propound a purported will dated 12 July 2016 in solemn
form. The testator was Elaine Reed, who died on 25 October 2016. The purported will,
prepared by Elaine’s solicitor Mr Davies and his assistant Ms Sadler, left her estate to her longterm cohabitee, Malcolm Roocroft, who died on 28 November 2024, over eight years later. The
claimants were the executors (with probate) and beneficiaries of Malcolm’s will. The
defendants were Elaine’s two children, Stephen and Gerard, who would have been entitled to
her estate on intestacy, with her having no previous will.

11 – The defendants had become aware of the terms of the purported will on or about 9 November
2016, when Malcolm showed it or a draft copy to them; and one of the defendants by his
solicitors had entered a caveat in respect of Elaine’s estate on 28 November 2016 and
thereafter renewed it. Malcolm, although the remaining executor and beneficiary of Elaine’s
purported will, had not warned the caveat or sought to obtain a grant of probate of the
purported will before he died. The defendants had intimated a challenge to the will, and there
had been a mediation with Malcolm, probably in late 2017, but no settlement was reached.

12 – Following Malcolm’s death, on 10 March 2025, the claimants commenced a probate claim
seeking to propound Elaine’s purported will in solemn form. The defendants opposed the
claim and raised a counterclaim which challenged the validity of the purported will on the
ground of want of knowledge and approval. However, in the circumstances of the creation of
the will, the court dismissed the counterclaim on knowledge and approval, and instead
granted the relief sought on the claim in favour of the purported will.

13 – The claimants had also relied on laches as barring the defendants’ counterclaim; and the court
held that, if it had not declined to hold the purported will invalid for want of knowledge and
approval, it would have declined to do so on the ground of laches.

14 – The court reasoned, at paras. [52]-[54], as follows:

52. In the present case, the defendants knew about the terms of the Will in early November
    2016, and solicitors instructed by Stephen entered a caveat before the end of that month. The
    Larke v Nugus request had been made on 8 March 2017 and they had the reply on 10 April
53. They had everything they needed to know in order to mount a claim by July 2017 at the
    latest, and enough for a mediation to be conducted in late 2017. They never made a claim to
    set aside the Will until the counterclaim in the present proceedings. That is a delay of at least
    7½ years or thereabouts.
54. The period of delay from the end of 2017 until 28 November 2024 has deprived the court
    of the evidence of Malcolm himself, which would have been of considerable assistance to the
    court and the parties. The passage of time has inevitably weakened the memory of Mr Davies
    and Ms Sadler, important witnesses. The quality of the evidence of all the witnesses must have
    been diminished. The state of the will file cannot be better ascertained since Mr Davies’ firm
    was closed down on 21 May 2023. Not only has this prejudiced the parties, including the
    claimants, it has rendered the task of this court in determining the facts substantially more
    difficult than it might otherwise have been.
55. No explanation for the delay was proffered by the defendants until they were crossexamined. At that point, their explanation was that they thought it was for Malcolm to make
    the next move after the caveats were in place… But it is not a good explanation for the delay,
    and does not justify it. I reject the further suggestion that they were under the impression that
    they could not bring proceedings themselves: that cannot be right, since they were in receipt
    of legal advice which will certainly not have suggested that.

Conclusion

15 – In Bowerman v Bowerman, the dismissal of the probate claim for undue delay in bringing it
was part of the ratio of the case – i.e. the claim would otherwise have succeeded – and this
case supports the previous recent cases on the laches doctrines and illustrates the facts on
which a court may find that a probate claim is barred for undue delay in bringing it.

16 – The comments in Stephenson v Daley were obiter, but are perhaps more notable in that, unlike
the previous recent cases, the court would have found the probate claim barred for laches
even though the executor of the purported will had not obtained a grant of probate in respect
of it and had delayed in seeking a grant over a similarly long period as the defendant had in
challenging the purported will. It is not clear to the author that this would have been the correct decision, and (if the judgment itself is not appealed including on this point) it would seem important for the courts to consider the point further in the near future.

The material contained in this article is provided for general information purposes only. It does not constitute legal or other professional advice. No responsibility is assumed by any member of chambers for its accuracy or currency, and reliance should not be placed upon it. Specific, personal legal advice should be obtained in relation to any case or matter. Any views expressed are those of the editor or named author.