When is it Too Late to Challenge a Will?
If a Will has been proved in common form (i.e. by an administrative proceeding) as opposed to solemn form (i.e. by a judicial proceeding in open court), longstanding English authority has stood for the proposition that the next-of-kin remain, as of right, entitled to have the will proved in solemn form.
However, this entitlement is not absolute. When the next-of-kin have a benefit under the Will, are served with the Notice of Application for Probate in common form, and take no steps to challenge the Will, they may be barred from later seeking to challenge the Will.
So, for instance, in the recent Ontario case of Bermingham v. Bermingham Estate  O.J. No. 1320, when the only daughter of a deceased permitted a Will to be proved in common form and then, eight years later, moved to have the Certificate of Appointment returned to the Court, the Court denied the request on the basis that the beneficiaries relied to the next-of kin’s acquiescence to their detriment. In short, the Court invoked the equitable doctrine of laches to deny relief.
While, intuitively, a delay of eight years in waiting to commence a will challenge is not justifiable, there may be an appropriate case in which the Court will grant relief to a delinquent challenger. Such a case will turn on the personal circumstances of the next-of-kin and the explanation for their apparent acquiescence which may or may not be reasonable.
In addition, evidence of suspicious circumstances surrounding the making of a Will may tip the balance in favour of an Order returning the Certificate. Certainly, any excessive delay should be avoided in making the decision to challenge a Will.
Have a great day.