Earlier this year we reported on the case of Cowan v Foreman, [2019] EWHC 349 Fam and the decision of Mr Justice Mostyn to refuse Mary Cowan an extension of time to bring a claim 17 months out of time against her late husbands estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. In his judgment, Mr Justice Mostyn was highly critical of standstill agreements. He said:

If it is indeed common practice (to use a stand-still agreement), then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court. If the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock a snook at the clear Parliamentary intention.”

On 30 July 2019 the Court of Appeal overturned Mr Justice Mostyn’s decision granting Mrs Cowan leave to bring her 1975 Act claim out of time. Mrs Justice Asplin made clear that each claim under the 1975 Act is fact specific and must be considered in light of the relevant factors. In this case, there was clearly a proper explanation for the lapse of time (albeit it was not necessarily the case that there must always be a good reason for all delay).

Lady Justice Asplin said that Mr Justice Mostyn was “plainly wrong” in reaching the conclusion that he did. She disagreed that to allow Mrs Cowan’s claim would amount to forced spousal heirship and emphasised that the purpose of the time limit in mounting a 1975 Act claim is to give personal representatives a degree of protection when distributing an estate that then later becomes subject to a claim of this nature.

As to Mr Justice Mostyn’s criticism of standstill agreements, the Court of Appeal emphasised the importance of without prejudice negotiations. However the court did make clear that if there is to be a standstill agreement in place it should be clearly documented, including the terms and duration of the standstill, and all parties to the claim should be included. In these circumstances, whilst the court could still refuse to extend time, if the agreement had been reached between parties with legal representation it would be unlikely that the approach adopted would not be endorsed by the court.