If you are a grieving family member or dependant considering claiming against the Estate of a loved one where you feel that you have not been provided for by their Will or by the strict rules of intestacy, following a recent Court of Appeal ruling, it is now easier to bring a claim outside the harsh time frame set down in Statute.
Under Section 4 of the under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), a claim must be issued at Court within 6 months of the date of the Grant of Probate unless, on application, the Court permits otherwise.
The Court of Appeal has recently ruled that in a late application for such a claim, whether the case has a strong chance of success is a more important factor than deciding what the reasons are for the delay in bringing that claim.
Mary Cowan brought a claim against the Estate of her deceased husband Michael Cowan. Probate of the Deceased’s Estate was granted in December 2016 but Mary’s application to the Court to extend the 6 month period was not made until November 2018, some 17 months out of time.
The Deceased’s Estate was worth almost £16m. In the Deceased’s final Will written shortly before his death, he placed the majority of his Estate into a discretionary Trust for the benefit of Mary as well as a number of other Beneficiaries. In his Letter of Wishes directed at the Trustees responsible for administering the Trust, the Deceased emphasised that he intended Mary to be the principle Beneficiary under the Trust.
After a relationship with the Deceased for over 20 years, Mary was not satisfied with this arrangement. Mary brought her claim under the 1975 Act against the Deceased’s Estate on the basis that although she would receive a generous income from the Trust, she had neither control over the discretionary Trust Fund nor any assets (including her marital home) in her own name.
Probate was granted and Mary’s legal team lodged her claim and entered into negotiations with the Trustees of the Deceased’s Estate. Whilst settlement discussions were ongoing, the parties agreed not to raise expiry of the 6 month limitation period as an issue in the proceedings through a “standstill agreement”. Final settlement was not reached however between the parties and the case proceeded to Court.
Mary issued court proceedings 17 months after the limitation period had expired. The Court considered Mary’s application to deal with her claim out of time. Mr Justice Mostyn dismissed Mary’s application but gave her the right to appeal his decision.
The Court of Appeal allowed the appeal and gave Mary permission to commence proceedings outside of the prescribed 6 month time limit.
Lord Justice Asplin ruled that it was necessary to determine whether a case has “a real prospect of success” having regard to all of the circumstances of the case.
It was also held:
Whilst every effort should be made after the death of a loved one, to consider bringing a timely claim against their Estate for financial support, this decision shows that the Court has some sympathy towards potential claimants and those seeking to resolve matters between them without the involvement of the Court.
At the time of loss, bringing a claim through litigation is not going to be at the forefront of the bereaved’s thoughts and based on the important and binding decision in Cowan, provided a claim has merit and strong grounds for success, delay in actually issuing the Court proceedings is unlikely to prevent a worthy individual from recovering what, in the Court’s view, should have been left to them under the terms of the deceased’s Will provided everyone acts sensibly in agreeing and documenting their agreement to delay the issue of proceedings.
Remember that despite the Cowan decision, it is safer to ensure that any claim is made within the 6 month time period so that the court’s discretion need not be relied upon.
If you would like advice regarding a potential claim under the 1975 Act we are happy to help you. Please contact a member of our Contentious Probate team for assistance.