The eagerly awaited Court of Appeal judgment in Cowan v Foreman ( EWCA Civ 1336) was handed down on 30 July 2019, confirming that Cowan can make a claim out of time for reasonable provision from her husband's estate (for further details please see "Court U-turn in approach to 'out of time' inheritance act claims").
The deadline for making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is usually six months from the date of the grant of representation, although the court can permit applications to be made out of time. In this case, the parties were engaging in pre-action correspondence and had agreed to extend the deadline. The first-instance judge was willing to ignore the parties' own agreement to extend the time and refused Cowan permission to bring her claim.
It will be a relief for potential claimants to know that the Court of Appeal has overturned this decision, noting in particular that:
- the aim of the time limit is to protect personal representatives from the consequences of distributing an estate which later becomes subject to an inheritance act claim (and not to protect beneficiaries from "stale claims" as had been suggested by Mr Justice Mostyn at first instance);
- negotiations are to be encouraged; and
- even where generous provision is made by way of a trust, reasonable financial provision may require payment of a capital sum in order to provide appropriate security to the claimant.
The Court of Appeal disagreed that to allow this claim would amount to forced spousal heirship, as each case always depends on its own facts and the specific application of the factors set out in the inheritance act.
This latest judgment in Cowan removes the previous discrepancy between it and Bhustate v Patel ( EWHC 2362 (Ch)), in which a widow was given permission to bring an inheritance act claim almost 27 years after the deadline. It confirms that a delay need not be fatal, especially if:
- it is relatively short;
- there is an arguable case;
- time has been used for correspondence or negotiation; and
- the estate has not been distributed.
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