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The Disputed Wills, Trusts and Estates team acted for the executor in the recent High Court judgment of O’Herlihy v Taylor and Upsdell [2026] EWHC 505 (Ch) (O’Herlihy).
The case provides valuable guidance on the Court’s approach to out‑of‑time claims brought under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act).
This article is the second in a two-part series considering the key lessons arising from the judgment. Please click here to read our first article on lessons for executors, which includes a summary of the pertinent facts.
Key learnings for claimants
In O’Herlihy, the Court refused to grant Made in Chelsea star Lonan O’Herlihy (Claimant) permission to pursue a 1975 Act claim over four years out of time. We set out below three key ‘takeaways’ for claimants considering whether to bring an out‑of‑time 1975 Act claim.
Delay will be closely scrutinised
Under section 4 of the 1975 Act, a claim must be issued within six months of the date of the grant of probate. Although the Court has discretion to allow claims to be brought outside this timeframe, there is no statutory guidance as to how that discretion should be exercised. The burden therefore rests firmly on the claimant to demonstrate that it is just and proper for permission to be granted in the circumstances.
In O’Herlihy, a delay of more than four years was ultimately fatal to the application, largely due to unexplained periods of inactivity after the Claimant became aware of Mr Taylor’s death and the potential for a claim.
That is not to say that all claimants seeking to bring out-of-time 1975 Act claims will be unsuccessful. The Court has, in some cases, granted permission to claimants seeking to pursue claims brought many years out of time, including a delay of over 25 years (Bhusate v Patel & Ors [2019]). However, each case turns on its own facts, and claimants should be prepared to demonstrate compelling reasons for any delay.
Claimants are expected to be proactive
In the modern world, prospective claimants have unprecedented access to online information. It is increasingly challenging for claimants to justify a prolonged delay on the basis that they were unaware of their legal rights due to lack of information.
A key theme from O’Herlihy is that claimants are expected to act with reasonable diligence. The Court recognised that most people now have access to the internet, and that even basic enquiries (‘Googling’) could have revealed the existence of a potential 1975 Act claim and the availability of different funding options. A relatively computer literate individual should be prepared to explain what steps they took to try and understand their position.
The Court was also critical of the Claimant’s failure to explore alternative funding earlier, noting that he could have sought representation on a Conditional Fee Agreement earlier and would have reasonably been able to find information about this (including from his instructed solicitors). The fact that he decided to allocate some of the funds he did have to other endeavours (a personal investigator and flights aboard) did not ‘land’ well.
Once a claimant knows (or ought reasonably to know) of the grant and a potential claim, they are expected to take reasonable steps to investigate their position. A failure to do so will count likely against them.
The need for consistency
Claimants seeking to pursue claims under the 1975 Act are required to act promptly and consistently. Evidence that a claimant began pursuing a claim but then allowed it to stall or be temporarily abandoned will likely not be sufficient to justify an extension of time.
In O’Herlihy, the Court emphasised that intimating a claim will not of itself overcome limitation issues (it is not a ‘tick box exercise’). The Claimant had repeatedly allowed long periods of time to elapse after taking initial steps and between correspondence. This reasonably led the Defendants to believe that the matter was not being progressed. The Court held that such stop‑start conduct did not demonstrate promptness and exacerbated the prejudice suffered by the estate and the beneficiaries.
It is clear that a claimant who takes initial steps but then disengages for prolonged and unexplained periods is likely to undermine any application for permission to bring proceedings out of time.
The priority for out of time claimants should be to take early advice as soon as they become aware of a potential 1975 Act claim, act on it and be prepared to demonstrate that active steps have been consistently taken to seek to mitigate the overall impact of any delay.
For any advice on how to manage these situations or if you have any queries about 1975 Act claims, please contact Jasmine Ivory.