In my earlier article entitled “Increased inheritance for those with greater needs” I provided a brief outline of who is entitled to bring claims for greater provision out of the estate and in what circumstances. This time I would like to focus on the issue of when such claims may be made.
For the moment, in order to bring a claim under The Inheritance (Provision for Family and Dependants) Act 1975 (for the sake of brevity I will refer to it as “the 1975 Act”) it is necessary that a Grant of Probate or Letters of Administration in respect of the deceased person’s estate have been taken out. Although there are plans for this requirement to be disposed of in the future (look out for my article on changes planned under the Inheritance and Trustee’s Powers Bill), this is how the law stands for the moment.
That is why when considering a claim under the 1975 Act it is absolutely necessary to check as to whether a Grant of Probate or a Grant of Letters of Administration have been taken out. Such checks may be carried out at the Probate Registry.
Should the search results come back negative, i.e. indicating that no Grant of Representation has been taken, a standing search may be placed at the Probate Registry. A standing search is effectively a request that you be automatically informed when a Grant of Representation in respect of the estate of the particular deceased is issued within six months of the registration of the standing search. Standing searches may be extended innumerable number of times.
When no Grant of Probate has been taken out, the recalcitrant personal representative may be “forced” to take a grant by the procedure of citation. In the alternative, an application for that person to be passed over as the personal representative and someone else to be appointed in their place may be made under sections 116 and 117 of The Senior Courts Act 1981.
What happens if the probate searches show that a Grant of Probate in respect of the particular deceased’s estate is taken out? A claim under the 1975 Act must be brought within six years of the date on which such a grant was issued. Nevertheless, not each type of a grant will start at the time running.
There are a number of grants limited to particular purposes and which do not enable the personal representatives to distribute any of the estate without the leave of the court. These include a grant to collect the goods (a grant ad colligenda) or a grant taken out only to enable determination of probate proceedings (a grand pendent lite or ad litem). As we know from case law (see Re Johnson) those will not start the clock ticking for the purpose of claims under the 1975 Act.
Similarly, it may be accepted that a foreign grant (i.e. one that does not entitle the personal representatives to distribute property situated in England and Wales) will not be effective to start the clock ticking for the purpose of the 1975 Act claims. Be aware though that grants issued in Northern Ireland and Scotland are recognised as if they had been made in England and Wales. They are therefore not treated as foreign grants.
What happens if probate searches reveal that a full/”normal” Grant of Probate had been taken out more than six months ago? The claim need not be lost! There are limited circumstances in which the court may grant permission to proceed with the 1975 Act claim out of time. Look out for my further article dedicated to that issue. Alternatively, contact one of our solicitors for advice.