Clive Leonard Stephenson & Anor v Gerard Anthony Daley & Anor

This is the trial of the claimants’ claim to propound in solemn form the purported will dated 12 July 2016 (“the Will”) of Elaine Carol Reid (“the Deceased”), who died on 25 October 2016, aged 62. She had made no other will, and would otherwise have died intestate.

The Deceased had two sons by a previous relationship and had long lived at 3 Berry House Cottages (“the Property”), of which she was sole registered proprietor, with Malcolm Roocroft (“Malcolm”), who survived her but died on 28 November 2024. The claimants are the executors and beneficiaries of his will dated 20 November 2024, of which they obtained probate on 4 February 2025.

The Will of the Deceased was prepared by Stephen Davies, a local solicitor (“Mr Davies”). It was signed by him and his assistant, Ms Helen Sadler, as witnesses to its execution.

By the Will, the Deceased appointed Malcolm and Mr Davies to be her executors, and left her entire estate, including the Property, which was its main asset, to Malcolm absolutely; but if he died before the Deceased (which in the event he did not), to her only two children, the defendants (“Stephen” and “Gerard”).

The defendants became aware of the terms of the Will on or about 9 November 2016, and Stephen, who had by then instructed solicitors, entered a caveat on 28 November 2016 and thereafter renewed it. Gerard first entered his own caveat on 23 September 2024, and also kept it renewed. Malcolm died without having warned those caveats or sought to obtain a grant of probate of the Will. A mediation had taken place between them but had not resulted in settlement.

On 3 February 2025 Mr Davies renounced probate of the Will. On 6 March 2025 the defendants entered appearances to the claimants’ warning of their caveats, and disputed the Will on the ground of want of capacity, coercive control on the part of Malcolm, and on the grounds that Mr Davies had not taken his instructions from the Deceased, that his file notes were dated the year after the Will was executed, that he allowed Malcolm to be present throughout the signing of the Will, that the address of the Deceased was not correct in the Will, and (which is admittedly not the case) Mr Davies had since been struck off.

Following a letter of claim dated 19 March 2025 from solicitors instructed on behalf of the defendants in which they asserted that the Deceased lacked capacity, and that there had been a want of knowledge and approval of the Will, and reserving their position in relation to undue influence, this claim was commenced on 10 March 2025. The defendants counterclaimed a declaration against the validity of the Will and, as the only persons entitled on intestacy, a declaration that the Deceased died intestate and an order for the grant of letters of administration to them.

The written report of the single joint expert, Mr SJE Moore, a specialist in toxicology and clinical biochemistry, was that on the balance of probabilities the Deceased’s medications and hyponatraemia would likely have produced at most mild sedation/lethargy, and not acute confusion or significant memory impairment. He was not called to give oral evidence.

The sole ground upon which, at trial, the defendants sought to set aside the Will was that the Deceased did not know and approve of its contents: her capacity, and free will were no longer in dispute. The claimants invited the court to find that the Deceased did know and approve of the contents of her Will, and in any event that the defendants’ counterclaim is barred by laches.

It is an unusual feature of this case that the sole ground upon which the defendants seek to set aside the Will is want of knowledge and approval. They accept that the Deceased executed the Will, that it was prepared by a solicitor, that its execution was witnessed by that solicitor and his assistant, that the Deceased had capacity to execute it, and that she was not coerced into doing so. Although they criticise the drafting of the Will, they do not dispute its terms, or its effect, which is very simple. It is not irrational. Nor is it a long document. There is no suggestion that the Deceased could not read, or had become incapable of reading it. In circumstances like this, there is rather little room for a court to find that the Deceased who signed the Will did not know and approve of its contents. That is the defendants’ case, however.

There is no substantial dispute as to the law. In Hoff v Atherton [2003] EWCA Civ 1554 at 62 Chadwick LJ held that:

“A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs.”

In Fuller v Strum [2001] EWCA Civ 1879 Peter Gibson LJ pointed out that in the ordinary case, knowledge and approval are established by the propounder of the will proving the testamentary capacity of the Deceased and the due execution of the will, from which the court will infer knowledge and approval. But he said that where the circumstances were such as to arouse the suspicion of the court, the propounder must prove knowledge and approval affirmatively, and all relevant circumstances will be scrutinised vigilantly and jealously. That might be read as suggesting a two-stage approach, considering firstly whether suspicion was adequately raised, and secondly whether it was adequately dispelled.

More recently, however, in Pascall v Graham [2025] UKPC 26, the Privy Council doubted whether the correct approach to assessing knowledge and approval was two-stage, preferring a unitary approach (as endorsed in Gill v Woodall [2010] EWCA Civ 1430).

Either way, of course, the answer should be the same; and the parties agree that it makes no difference which approach the court adopts in the present case, as indeed it has not.

In Pascall v Graham the Board emphasised

“…the need not to let challenges to knowledge and approval by disappointed relatives undermine the "fundamental principle of English law, namely that people should in general be free to leave their property as they choose," and thereby result in many estates being diminished by substantial legal costs”;

and at 32 – 34, that:

“32.

The starting point is that he had full testamentary capacity when he made the will. This means (among other things) that he had a proper understanding of the identity of those persons who might be said to have a moral claim on his bounty, and must therefore at least have had in mind whether or not to benefit his daughter, before deciding not to do so, as he was free to do.

33.

Next, and most compelling of all, the will was an extremely short and simple one-page document. The most perfunctory reading of it would demonstrate that he was disposing of all his property to the named charity, and that none of it was going to Mrs Graham [the claimant]. It was read over to him shortly before he executed it, and he could not have been unaware (if in sound mind) that this is what he was doing by executing the will.

34.

Finally Mr Cox [the testator] acknowledged the will as his will when he gave it to Mr Pascall as his intended executor for safekeeping. This is not one

of those cases where a testator executes a will which is then held by lawyers or other family members, without him ever seeing it again. In this case Mr Cox must have taken it home as his will, and maintained a settled intention as to its

contents until he handed it over shortly before his death.”

The burden of proof lies upon the claimants to prove the Deceased’s knowledge and approval, but a strong presumption of knowledge and approval arises where a will has been read over to a testator before execution: see the judgment of Lord Neuberger MR in Gill v Woodall, at 14 – 17:

“14.

[…] As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will.

There is no need to go into the many other authorities to which counsel referred in their respective skeleton arguments, since the cases cited above set out the relevant propositions of law.

Although, at the level of principle, I prefer the unitary approach mentioned above, it is nonetheless convenient to adopt the defendants’ summary of the alleged grounds of suspicion to which they draw particular attention. They are said to be as follows.

The events with which the court is concerned took place over 9 years ago, and memories will have faded. Obviously, the court does not have the evidence of the Deceased. Nor does it have evidence from Malcolm. The defendants were not involved in the making of the Will, though they could speak to the relationship between the Deceased and Malcolm, their mother’s circumstances at the time, and what they knew about the Will; however, I did not find them to be very reliable witnesses (and Gerard in particular showed signs of being both argumentative and evasive), although their upset at being left out of both their mother’s Will and that of Malcolm (who had acted as a surrogate father) was plainly genuine. The evidence of friends and neighbours of the Deceased was called in opposition to their account, but since ordinarily one can never know the interiority of a relationship or marriage to which one is not party, their evidence was of limited help on that point. The claimants have no relevant knowledge, and did not give evidence.

Helen Sadler’s evidence of the execution of the Will and its circumstances on 12 July 2016 was plainly honest and accurate despite the passage of time. She remembered the occasion because it was her first and only offsite visit. She remembered Mr Davies taking the Deceased through the Will before it was executed, but not how he did it. I accept her evidence.

Mr Davies was extensively cross-examined for about 2 ¼ hrs. Although he was effectively accused both of sloppiness and dishonesty - including that in 2017, in response to a Larke v Nugus request, he had deliberately created file notes relating to his instructions and the execution of the Will in 2017 but backdated them to appear to be from 8 July 2016 and 12 July 2016 (though the latter was embarrassingly dated 12/07/17) - he maintained his composure, and I formed the impression that, although he did not always listen well to questions, he was overall genuinely attempting to assist the court with his recollection which, however, with the passage of time, and the intervention of events, was patchy and imperfect, as he frankly admitted at numerous points.

It was not in dispute that in about 1984 the Deceased had entered into a loving relationship with Malcolm or that in 1997 she had acquired the Property (in which he had himself lived at some previous time) in her own sole name and they lived there together. It is clear from some selected texts and messages in 2011 and 2013 which the defendants placed in evidence that the relationship had by then been unhappy for many years and that she had thought of leaving, and that they slept separately. The evidence of friends and neighbours was broadly that the relationship appeared to be good, and that her public disparagement of him from time to time was banter; that of the defendants was that it was not, and that she despised him. It is, I think, impossible for this court to form a judgment as to a matter so intimate and so inadequately evidenced, but it can at least be said, I consider, that they were still in a relationship in 2016, albeit it was perhaps to some degree or at some times an unhappy one. I give no weight, however, to the evidence of what Stephen may or may not have said in praise of Malcolm in his eulogy on his mother’s death: one is not on oath on such occasions. Nor can I place much reliance of the evidence of friends and neighbours, since people often prefer to conceal unhappiness.

The Deceased suffered from stage 2 cancer in 2014, and had a total abdominal hysterectomy in March of that year. Having made an apparently good recovery, her cancer recurred and was discovered in late 2015 to be a rapidly progressive disease. Her medical records show that she was accompanied to a number of medical appointments in 2015 and 2016. Although the name of her companion has been redacted from those records, presumably for reasons of data protection, the natural inference is that for the majority, if not all, of those occasions, she was accompanied by Malcolm, who at times is described as her partner. In July 2016 she felt too weak to travel to the Liverpool Women’s Hospital, where she normally attended, and was admitted to Southport General Hospital on 4 July 2016. She had not previously made a will. I accept that this was a matter of grave concern to Malcolm, who otherwise would inherit nothing and would lose his home. I accept that he, and others at his urging, had asked the Deceased about her making a will, on several occasions. I find that on those previous occasions she had indignantly refused to do so, and declined to discuss it. I accept, too, the evidence that she knew that if she died without making a will, her estate would pass to her sons under the rules as to intestacy, and that Malcolm would receive nothing. I cannot know her reasons, but they may well have included a sense of obligation to her adult sons, the unhappiness of her relationship with Malcolm, resentment at being told or asked to make a will, and the common reluctance to consider her mortality.

Mr Davies was an experienced solicitor who had been admitted in 1993 and whose firm drafted on average about five wills a month.

On or about 8 July 2016 Mr Davies received a telephone call about the preparation of a will for the Deceased. I accept that it may well have been initiated by Malcolm. I accept that Mr Davies did not take instructions for the will from Malcolm, but from someone whom he believed to be the Deceased, probably when he called back. Those instructions were to prepare a will for the Deceased leaving her entire estate, including the property, to Malcolm, and for it to pass to her sons only if Malcolm died before her.

I accept that the handwritten note made by Mr Davies and dated “8/7” was made on 8 July 2016 and was a note of that telephone call, although it was much more informal and much less full than it should have been, as I understood him to accept. I do so because to take a note at the time would be normal practice and because I accept Mr Davies’ evidence that he would have done so and that this was his note of that date.

I accept, too, that the conversation must have been with the Deceased: it is vanishingly unlikely that Malcolm would have fraudulently procured that someone else take part in such a call pretending to be the Deceased, because it would be highly dishonest and almost immediately discoverable when it was time for the Will to be executed if not before; and even more unlikely that anyone else would have agreed to do it.

It follows that the instructions came from the Deceased. For present purposes, it matters not that Malcolm may have been present with the Deceased during the call, and that Mr Davies could not know, and may not have checked, whether he was or not. No case of undue influence is pursued. It does not affect knowledge and approval.

I do not accept that the Deceased cannot have given these instructions because she had been deprived of her telephone, or the use of it, from about 7 or 8 July 2016. I accept the evidence of Stephen, of Jerina Bardsley, and the hearsay evidence of Raymond Bham, that at about that time they ceased to be able to make contact with her on that telephone. But I think it more likely than not that the explanation is that she was choosing not to respond as she became more and more unwell.

I do not accept the attempt to draw the inference from her discharge documentation that she could not have used her home landline either: on so little evidence, and at such a distance and time, the inference is not strong. In any event, it is more likely that the mobile telephone was used. Given the parlous state of the file as it now stands, and Mr Davies’ apparently less than rigorous working practices at the time, I attach no importance to the circumstance that her mobile number was not on the physical file, although her landline number was: it is most likely that it was stored in his telephone, or on a casual note which is no longer available, and was at some point placed in the electronic filing system, evidence of the content of which is no longer available since the firm moved to a new system.

I do not accept that it was implausible that the Deceased should have given those instructions. Malcolm was concerned that without such a will he might be left homeless, and had repeatedly expressed that concern. His concern was rational. She would have understood it. Mr Davies’ note indicates that by then she shared it. That is not implausible either: she and Malcolm had been in a cohabiting relationship since about 1984, however unhappy it may have been; and I accept the evidence, which even the defendants accepted, albeit reluctantly, that Malcolm had been her full time and assiduous carer throughout her final illness. I accept the evidence that it had taken a toll on Malcolm, because it must have done. I also accept that Gerard and Stephen did what they could, but their opportunities to help were unavoidably restricted to a degree by their own work and family lives: they are not to be criticised for that. It is likely, however, that the Deceased felt an obligation to Malcolm which is reflected in her instructions.

I accept that this represented a change of stance on her part. I regard it as explicable by Malcolm’s expressions of concern, the care he had given her, and her approaching death.

I consider it likely, moreover, that Malcolm had assured her that he would provide for her sons in his own will, as recorded in Mr Davies’ evidence and his note wrongly dated 12/7/17: they had a good relationship, as she must have known; and he would have recognised her sense of obligation to them, as she would also have done.

It is more likely than not that Mr Davies did indeed suggest a life interest instead, as he recalls, although it is not recorded in the note. That is simply because it is the sort of thing an experienced solicitor would and should have raised. His recollection, which I accept, and his later note, is that the Deceased rejected the idea because it would not allow Malcolm the freedom which he might need.

It is not controversial that Mr Davies prepared the Will in draft, for execution. He is not to be criticised for not having provided a copy for her to consider beforehand, given his understanding that she was terminally ill. In any event, the Will which he prepared reflected the substance of her instructions.

Mr Davies’ evidence was that he typed up the draft himself, making use in part of a template which was available to him. I accept this.

Mr Davies and Ms Sadler attended the Property on 12 July 2016 and saw the Deceased. What took place is purportedly recorded in a manuscript note of Mr Davies dated 12/7/17. He was unable to explain why it was not dated 2016 beyond saying it was a mistake, but he denied having prepared it in 2017. The note reads as follows:

“Appointment Elaine Reid 12/7/17

Present: Steven Davies

Helen Sadler

Elaine Reid

Malcolm Roocroft

Elaine repeated instructions & read will. Pointed out typing error.

Repeated instructions after talking for 10 minutes. She explained wanted MR to inherit unless he predeceased her then to her sons. Concerned his housing needs met and if he needed care he would have an asset.

I explained she could give ‘a life interest’. She said no.

Malcolm said he was prepared to make a new will out in favour of Stephen and Gerrard [sic]as if they had been married.

She was clear about what she wanted.

I asked if she was on medication. Said yes but she was clear & medication did not affect what she wanted.”

The evidence of both Mr Davies and Ms Sadler was that the Will was read over before the Deceased executed it.

The Will which had prepared for execution misspelled the address at the top and in bold next to the Deceased’s name, as well as in the primary operative provision at clause 1b., as “Bury House Cottages” instead of “Berry House Cottages”. It was not this error which the Deceased pointed out: it remained in the executed Will. The Will misspelled the defendants’ surname as “Daily”: she pointed out that it was “Daley” and this was corrected in manuscript. She also evidently gave instructions that she should be cremated rather than buried: the draft will provided for either, but ‘buried’ was deleted.

In his response on 10 April 2017 to the Larke v Nugus request to the question “Who, apart from the attesting witnesses was present at the execution of the will?” Mr Davies responded: “Present were, myself, Stephen Davies, Helen Sadler, my Assistant, Malcolm Roocroft and Elaine Reid.” That suggests that Malcolm was present for the execution of the Will. That is not inconsistent with the note of 12 July. Mr Davies’ first witness statement stated that Malcolm had left the room, however. His second statement said instead that he had no clear recollection as to where Malcolm was at any particular time and that his focus was on the Deceased. In cross-examination he was emphatic that Malcolm would have been asked to leave because that was the protocol, or rule of thumb, but that he did not actually remember.

I accept that he does not now remember. The apparent contradictions between his witness statements, and between his first witness statement and the note of 12 July are troubling. It is possible that he was attempting by what he said about this in his first witness statement to protect his professional reputation rather than to provide his genuine recollection. I think it more likely, on balance, however, that he did ask Malcolm to leave, because he would have known at the time that he should; and I am reinforced in that conclusion by the evidence of Mr Elias in cross-examination that he was at the cottage at the time and left to go to the workshop when Mr Davies arrived, followed by Malcolm. That is not strictly inconsistent with the note of 12 July, which records his presence at the meeting, but not his leaving or returning; but given its other deficiencies that is perhaps not surprising. It is strictly inconsistent with the response to the Larke v Nugus letter, but not with the cursory and unrigorous reading of it demonstrated by Mr Davies’ approach to his response to the letter overall.

I do not accept the startling submission that the 12 July note was actually prepared in 2017. Certainly the manuscript dating “/17” is an oddity, and one for which there is no explanation. But I reject entirely the suggestion that the evidence in this case justifies the proposition that a solicitor, notwithstanding that his practice may subsequently have been intervened in by the SRA for unrelated reasons (albeit on the grounds of the behaviour of an employee), should for no apparent benefit to himself, forge an attendance note (something which might end his career and expose him to criminal sanction), let alone do it so unsatisfactorily, even to the extent of writing the correct year upon which the forgery was committed at the top of it. There was no cogent evidence capable of justifying such an allegation.

Accordingly, I find that Malcolm left the room before the Will was executed. Mr Davies satisfied himself as to the Deceased’s mental capacity. He summarised the instructions he had been given on the telephone, and she reiterated them, explaining that giving Malcolm her estate would give him freedom and flexibility, and allow him to draw on the assets should he need care in the future. He ran through the terms of the Will that he had drafted, and she pointed out the misspelling of her children’s surname and the fact she wished to be cremated, and initialled manuscript amendments before executing it before Malcolm returned to the room. Malcolm then said he was willing to make a will in favour of Stephen and Gerard.

That the Deceased failed to pick up the misspelling of her address is not, in my judgment, sufficient ground for an inference that she did not read the top half of the first page of the Will, let alone that it was not read to her. This was a very hopeful submission. No one else noticed either. The points made by counsel about the indentations in the layout of the Will, and the way in which it was drafted are neither here nor there, in my judgment. It was a short document and a clear one.

That Malcolm is referred to as her partner in clause 1c. of the Will , which states “I have not made any provision for any other living relatives because Malcolm is my partner and will need the house to satisfy his living requirements,” is not an indication that she did not read the top half of the first of the page of the Will either, since I do not accept that she did not consider Malcolm to be her partner, whatever the state of the relationship.

That the meeting took place on 12 July 2016 is also confirmed by a letter from Mr Davies to the Deceased of 12 July 2016 enclosing his terms of business, on which Ms Sadler had written in manuscript the same date and the words “confirm bill for will paid in cash” and “H. Sadler.” Accordingly, I do not accept the suggestion, which is also startling, that this letter was created at some subsequent date, even in 2017.

The defendants claim, and the claimants do not dispute, that Malcolm showed them the Will, or a draft copy of it, for the first time on 9 November 2016. Although the defendants’ evidence was that they did not know what to think, it is clear that they were disappointed by it, and they prevented Malcolm from taking out a grant of probate of it by the caveat registered only a couple of weeks later. Evidently there was enough of a dispute between them for a mediation to take place, probably in late 2017.

One will never know whether it was because of this that, when Malcolm made his last will in 2024, he made no provision for them.

Accordingly, I conclude that the Deceased knew and approved of the contents of her Will. It reflected the instructions that she gave to Mr Davies, and which he recorded in his note the same day. It was short and simple. Although it represented a departure from her previous stance, it was far from inexplicable, and she was entitled to change her mind. She read it, corrected it in part, and he read it through to her. She had full capacity, and it was properly executed. It was not irrational. She was provided with a copy, and never sought to change it.

The claimants also rely on laches, that is, that as the result of the delay by the defendants in making a claim, they are barred from pursuing it regardless of the merits.

In Lindsay Petroleum Company v Hurd [1873] 5 AC 221 Lord Selborne LC stated at 239 – 240:

“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.”

The principles were applied to probate claims in the decision of His Honour Judge Matthews, sitting as a Judge of the High Court, in James v Scudamore [2023] EWHC 996 (Ch) (which was followed in Bowerman v Bowerman [2025] EWHC 2947 (Ch)) at 197:

“197.

Accordingly, in the light of the authorities, I consider that the following propositions are warranted: […]

(2)

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: Bell v Armstrong (1822) 1 Add 365; Merryweather v Turner (1841) 3 Curt 802.

(3)

But unjustified delay, possibly on its own (see dicta in Merryweather v Turner at 813 and 814, and also now Wahab v Khan), and certainly when coupled with acts amounting to waiver of the claimant's right, will bar the claim: Hoffman v Norris (1805) 2 Phill 230n; Braham v Burchell (1826) 3 Add 243.

(4)

Similarly where the delay has led to others' detrimental reliance on the inaction, such as distribution of the estate: Williams v Evans [1911] P 175.

Whether the propositions at (3) and (4) should be referred to as a probate version of the doctrine of laches, or by some other name, does not much matter. In my judgment, however they are called, they represent the probate law applicable to this case.”

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 2017. 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 7 ½ years or thereabouts.

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.

No explanation for the delay was proffered by the defendants until they were cross-examined. At that point, their explanation was that they thought it was for Malcolm to make the next move after the caveats were in place (presumably a reference to his not having warned them or brought his own proceedings). That is plausible enough for me not to be driven to the conclusion urged upon me on behalf of the claimants, that they had deliberately waited until after Malcolm died in order to obtain a tactical advantage from his not being able to give evidence. I am prepared to accept that explanation. 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.

Accordingly, I should have declined to set aside the Will, quite apart from the question of knowledge and approval, on the ground of laches alone.

I therefore direct a grant to the claimants of probate in solemn form of the last will of Elaine Carol Reid dated 12 July 2016 and I dismiss the counterclaim.