Clive Leonard Stephenson & Anor v Gerard Anthony Daley & Anor

Knowledge and approval of a will require the testator to understand what the will does and its effect. Where a solicitor has prepared the will, it has been properly executed, and it has been read over to a testator with capacity, a strong presumption of knowledge and approval arises. The court may assess the issue through a unitary evaluation of all the circumstances rather than a rigid two-stage process. Suspicious circumstances must be considered, but disappointment by relatives and a change in testamentary intention do not, without more, displace the presumption. In probate proceedings, prolonged and unjustified delay may bar relief where it causes substantial forensic prejudice, including loss or deterioration of important evidence.

The claimants sought probate in solemn form of a will made by Elaine Carol Reid, who died in 2016. The will left her estate, including her home, to her partner, Malcolm Roocroft, with provision for her sons only if he predeceased her. The defendants, the deceased’s sons, challenged the will solely at trial on the ground that she had not known and approved its contents.

The court considered the circumstances in which the will was prepared and executed, including the deceased’s terminal illness, the involvement of Malcolm, the solicitor’s evidence, the reading of the will before execution, and alleged drafting and record-keeping irregularities. The claimants also relied on laches arising from the defendants’ delay in bringing proceedings.

1. Knowledge and approval. The burden lay on the claimants. The deceased had to understand what she was doing and the effect of the will. The court preferred a unitary approach to the assessment of knowledge and approval, although the result would have been the same under a two-stage analysis.
2. A strong presumption arose because the will had been prepared by a solicitor, properly executed, and read over to the deceased before execution. The deceased had testamentary capacity, understood the instructions recorded by the solicitor, corrected the spelling of her sons’ surname, amended the funeral provision, and executed a short and simple will. The failure to notice the misspelling of the property’s address did not establish that she had failed to read or understand the dispositive provisions.
3. The change from the deceased’s earlier refusal to make a will was explicable by Malcolm’s care for her, his concern about losing his home, and her approaching death. The possibility that Malcolm had been present during earlier discussions did not affect knowledge and approval where undue influence was not pursued. The court found that he had left before execution.
4. Laches. Independently, the counterclaim would have been barred by laches. The defendants knew the will’s terms by November 2016, had obtained relevant information by April 2017, and had participated in mediation later that year, but waited until 2025 to bring their counterclaim. The delay weakened the evidence, deprived the court of Malcolm’s evidence after his death, and was not satisfactorily justified.
5. Probate in solemn form of the will dated 12 July 2016 was directed to the claimants. The counterclaim was dismissed.