A will challenge may appear legally compelling, but it can still fail if it is brought too late to achieve a useful remedy.
That is the central practical message from McElroy v McElroy [2023] EWHC 109 (Ch), a decision that highlights the importance of acting promptly where a grant has already been issued and an estate has been distributed.
The case demonstrates that probate litigation is not simply about whether a will or grant can be challenged. The court will also consider whether the remedy being sought can still achieve a meaningful result after a significant period of time has passed.
What Happened in McElroy v McElroy?
Ray McElroy died in 2011, shortly after marrying. His widow obtained letters of administration on the basis that he had died intestate and domiciled in England and Wales. The estate was administered and the principal property transferred to her.
A decade later, Ray’s brother sought to have the grant revoked.
He relied on a 2002 will under which he was the sole beneficiary. His case was that Ray had been domiciled in Scotland at the relevant time. If that were correct, the later marriage would not have revoked the earlier will in the same way as it would under the law of England and Wales.
The widow argued that the claim should not proceed because of the claimant’s delay, his conduct and the prejudice that reopening the dispute would cause after the estate had been fully administered.
Can You Challenge Probate Years After an Estate Has Been Distributed?
A grant of probate or letters of administration is not necessarily immune from challenge simply because time has passed.
However, McElroy demonstrates that delay can have significant consequences, particularly where an estate has already been distributed.
The court dismissed the claim. It held that the proposed recovery of the estate assets would be barred by laches, the equitable principle which can prevent relief where delay makes it unjust to permit the claim.
The practical issue was particularly important. Revoking the grant would serve no useful purpose if the claimant could not then recover the assets that had already been distributed. The court therefore treated the question of delay as capable of being determined in advance.
Why Did the Claim Fail?
The court identified several factors that made the claim untenable:
- The estate had been distributed many years earlier.
- The claimant knew from an early stage that the will existed and that he might benefit from it.
- He had not made a direct request to the widow for a copy of the will, although the court found that she would have provided it.
- He delayed substantially even after obtaining the will.
- The widow had arranged her affairs in reliance on the completed administration and would suffer materially greater prejudice if the claim were reopened.
The court also considered it relevant that the claimant had not disclosed his possible entitlement under the will during his own financial remedy proceedings following divorce.
Why Does Delay Matter in a Will or Probate Dispute?
McElroy shows that the court will not look solely at the number of years that have passed.
It will consider the wider history of the claim, including:
- When the claimant knew, or should reasonably have known, the material facts.
- What steps were taken to investigate and pursue the claim.
- Whether the delay was adequately explained.
- The conduct of both parties.
- The prejudice that would result from reopening the estate.
This is a fact-sensitive exercise. However, the decision provides a clear warning that a claimant who delays for strategic reasons, or fails to take straightforward investigative steps, may find it difficult to justify that delay later.
What Happens If Estate Assets Have Already Been Distributed?
Where estate assets have already been distributed, successfully challenging the validity of a will or grant may not be enough.
The claimant may also need to recover assets from the people who received them. As McElroy demonstrates, this can introduce equitable defences, evidential difficulties and significant questions of prejudice.
A successful argument about the validity of a will may therefore have limited practical value if the associated claim to recover the assets is no longer viable.
Why Early Action Is Important in Contentious Probate
Anyone who believes that a grant has been obtained on an incorrect basis should take legal advice promptly.
Depending on the circumstances, early steps may include:
- Entering a caveat.
- Seeking disclosure of the will and grant documents.
- Notifying personal representatives and beneficiaries of the dispute.
- Preserving relevant evidence.
For personal representatives and beneficiaries, the case also underlines the importance of maintaining a clear record of the estate administration.
Evidence showing what was known, what advice was obtained, when assets were distributed and how recipients relied upon that distribution may become critical if the estate is subsequently challenged.
What Does McElroy Tell Us About Cross-Border Estates?
The case also illustrates the potential complications where an estate has connections with more than one jurisdiction.
The deceased had connections with Scotland, England and Wales, Australia and work overseas. The question of whether his will survived his later marriage depended on domicile and the applicable succession law.
Domicile is highly fact-specific. It should not be assumed simply from a person’s nationality, ownership of property or a period of residence.
Where someone has lived, worked, married or held assets in more than one jurisdiction, succession planning and estate administration require careful early analysis.
The Key Lesson from McElroy v McElroy
McElroy v McElroy is an important reminder that probate litigation is not simply about establishing whether a will or grant is valid.
The court will also consider whether the relief being sought can still produce a meaningful result and whether it would be equitable to unsettle an estate that has already been administered.
The practical lesson is clear: investigate promptly, preserve your position early and do not assume that a later-discovered will can safely be relied upon after years of inaction.
This article provides general information only. It is not legal advice. Advice should be obtained on the facts of a particular estate or dispute.
Concerned About a Will or Probate Dispute?
If you are concerned about the validity of a will, believe an estate may have been administered incorrectly or are facing a challenge after assets have already been distributed, taking advice promptly can be important.
At Rose & Rose Solicitors, our Wills and Probate team advises families and individuals on estate planning and the legal documents that can help protect those who may be vulnerable. This includes legally sound Wills, Lasting Powers of Attorney to assist with the management of financial affairs and advice on obtaining formal capacity assessments where needed.
We also advise on contentious probate matters, including inheritance claims and Will disputes.
If you are concerned about a loved one, facing a dispute over an estate or want to ensure your own wishes are properly protected, speak to our team at Rose & Rose for advice tailored to your circumstances.
This blog post is not intended to be taken as advice or acted upon. If you are seeking legal advice, please contact our team of solicitors.
Frequently Asked Questions
Potentially, but McElroy v McElroy demonstrates that significant delay can prevent a claimant from obtaining an effective remedy, particularly where assets have already been distributed and recipients have relied upon the completed administration.
Laches is an equitable principle that can prevent relief where delay has made it unjust to allow a claim to proceed. It was central to the court’s decision in McElroy.
No. As McElroy demonstrates, the court will consider not only the validity of the will or grant but also whether the claimant can obtain a meaningful remedy after the estate has been administered.
The case highlights the importance of acting promptly. Depending on the circumstances, steps may include entering a caveat, obtaining relevant will and grant documents, notifying those involved and preserving evidence.
In McElroy, whether the earlier will survived the deceased’s later marriage depended on domicile and the applicable succession law. Domicile can therefore become particularly important where a deceased person had connections with several jurisdictions.
