In my earlier articles “Increased Inheritance for those with Greater Needs” and “When Can I bring a Claim under the 1975 Act”, I provided an outline for who can bring claims and how.  This time I will focus on when.  

As a general rule, claims under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”) need to be brought within six months of a Grant of Probate being taken out.  It should be noted that a Grant might only be taken out years after death.  If in doubt searches should be made at the Probate Registry to find the appropriate date. 

Despite the limit, the Court does have a special discretion to still allow for claims to be made after the expiry of the six month period.  What factors will the Court take into account when deciding whether to use its discretion? 

1     Merits of the claim

The first factor to consider is as to whether there would be a realistic prospect of success had the claim been made in time.  If the answer is no, the application for permission to proceed out of time is bound to fail.  At the same time though, the strength of the case will not of itself be determinative.  Assuming the potential claimant does have reasonable prospects of success, other factors relevant to the exercise of the Court’s discretion also need to be considered.

2     Distribution of the estate. 

The Court will want to be reassured that the existing beneficiaries of the estate will not be prejudiced should an award to the delayed claimant be made.  Again, non-distribution of the estate alone will not be enough to convince the Court that they should allow for the claim being brought out of time to proceed, as the claimant in a recently decided case of Berger v Berger learnt.  

Mrs Berger made a claim in relation to her late husband’s estate worth in the range of £7m.  Prior to Mr Berger’s death, Mr and Mrs Berger were married for 36 years and lived together for about 14 years prior to that.  Under the terms of Mr Berger’s Will, Mrs Berger was entitled to remain living in their matrimonial home (a large and valuable property in Surrey worth several million pounds).  She was also entitled to benefit from a trust set up under Mr Berger’s Will.  Unfortunately, the amount of funds Mrs Berger was receiving from that trust was not enough to allow Mrs Berger to maintain the property she was living in.  Mrs Berger herself was in her mid-80s and in poor health. 

The merits of Mrs Berger’s claim were substantial.  The majority of Mr Berger’s assets were placed on trust and thus there has been no substantial distribution of the estate.  Despite that the court refused Mrs Berger’s application for permission to proceed with her claim out of time.  In its judgment, the Court observed that the purpose of the six month time limit was to provide certainty.  In this case, even though there has been no distribution, the parties had been conducting their affairs for a number of years on the basis of no claim being made.  The Court stated that if a claim had been made in time, the parties would have acted differently.

3     Alternative remedy

Another factor commonly taken by the Courts into account when deciding applications for permission to proceed out of time is the availability of a remedy against some other party, e.g. a negligent solicitor who has not advised the claimant or failed to bring the claim within the six month limitation period.  

Where a claim against a solicitor is available, the Judge has an attractive option of refusing permission to proceed and therefore allowing the beneficiaries to keep the gifts, whilst at the same time not leaving the claimant to the 1975 Act claim out of pocket.   They can recover what they would be entitled to under the 1975 Act from the negligent solicitor.  This was a stance that the Court took in the case of e.g. Adams and Schofield

Again, though, the availability or non-availability of alternative remedy is not in itself a determinative factor.  In Mrs Berger’s case the Court refused permission, despite alternative claims not being available to Mrs Berger!

What will therefore decide the success of an application for permission to proceed out of time?

A common feature of most cases where applications for permission to proceed out of time have been permitted, even after a very long delay, is the existence of a special intervening factor; something, quite often, very specific to the case at hand, upon which the Court could hang its hat on.

In Re C, a claim on behalf of an 8 year old daughter of the deceased was brought well out of time.  The reason for the delay was the failure of the child’s mother to bring the claim, or even offer an excuse for her failure to do so.  In this context, the Court felt that to deny an application to proceed out of time would be a substantial injustice to the child and the claim was therefore allowed to proceed.

The case of Re McNulty, based on fact very similar to those of the case of Mrs Berger, was allowed to proceed though it was brought out of time. The distinguishing factor was that information about the true value of the estate was withheld from the claimant.  In Re McNulty, though a lot of time passed since issue of the Grant until the claim was brought, the claimant proceeded with a case as soon as she became aware of the true value of the estate.

In Stock v Brown a claim was allowed to proceed after more than five and a half years’ delay, as there was no resistance to the claim from the residuary beneficiaries of the estate (i.e. those from whom the Court would have to take in order to provide for the claimant).

What is apparent is that that decisions to grant extensions are always very fact specific.  Generalising that applications for permission to proceed out of time made three months after expiry of the limitation period will always be successful, or that application brought more than five years after the expiry of the limitation period will always be unsuccessful is entirely wrong. If you think you might have a claim, even if it is out of time, contact one of our solicitors for advice.