In the latest in a series of decisions on out of time claims, the High Court refused permission to bring an out of time claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act“) where the claimant had failed to promptly bring her claim. The decision is a reminder both for claimants under the Act, and their solicitors, of the importance of bringing claims within the statutory time limits, and the potentially serious consequences of a failure to do so.


Mrs Rosita Hendry met her husband, Mr Michael Hendry in 2001. The couple got married in 2003 and lived together until they separated in June 2016. Following the separation, in August 2016 Mr Hendry made a will, in which he made no provision for Mrs Hendry. In November 2016 Mrs Hendry petitioned for divorce.

Mr Hendry died in February 2017 and Mrs Hendry brought a claim for reasonable financial provision under section 2 of the Act. Probate was granted to Irwin Mitchell Trustees Ltd as executor on 29 August 2017. The deadline for Mrs Hendry to bring a claim for financial provision under the Act was therefore 1 March 2018 (6 months from the date on which representation was taken out). This claim was not issued until 27 April 2018. As such, Mrs Hendry sought permission to bring this claim out of time under section 4 of the Act.

Legal background

In determining whether to allow Mrs Hendry’s out of time application under section 4 of the Act, the judge considered the following seemingly conflicting English authorities on the matter (which both came out after the hearing in Hendry):

  1. In Cowan v Foreman [2019] EWHC 349 (Fam) Mostyn J refused permission to bring a claim 17 months out of time. That case drew an analogy with the court’s approach to breaches of the CPRs and relief from sanctions, despite the fact that section 4 is a substantive, not a procedural rule. The judge considered that the proper approach to section 4 was to follow the principles set out in Berger v Berger [2013] EWCA Civ 1305 (summarised below). Permission has been granted to appeal the decision.
  2. In contrast, in Bhusate v Patel [2019] EWHC 470 (Ch) Chief Master Marsh granted permission to bring a claim almost 26 years out of time. He considered that the correct approach was to follow the guidelines set out in Re Salmon (Deceased) [1981] Ch 167 and Berger v Berger. The Chief Master was critical of drawing in the overriding objective or the relief from sanctions principles to a substantive statutory provision.

Our note on the Cowan and Bhusate decisions is available here. The decision in Cowan was very recently overturned by the Court of Appeal; the High Court’s decision in the case should therefore be treated with caution. Check back on this blog for our report on the Court of Appeal’s decision.


Permission to bring a claim out of time under section 4 of the Act was refused. In reaching this decision, the judge applied the guidelines set out in Berger v Berger:

  1. The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
  2. The onus is on the Applicant to show sufficient grounds for the granting of permission to apply out of time.
  3. The court must consider whether the Applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit.
  4. Were negotiations begun within the time limit?
  5. Has the estate been distributed before the claim was notified to the Defendants?
  6. Would dismissal of the claim leave the Applicant without recourse to other remedies?
  7. Looking at the position as it is now, has the Applicant an arguable case under the Inheritance Act if the application is allowed to proceed?

(3) Has Mrs Hendry acted promptly and what are the circumstances that gave rise to the application out of time?

Master Shuman found that Mrs Hendry’s evidence that she was trying to avoid litigation and had little money did not explain the delay in bringing the claim. The judge also noted that Mrs Hendry was aware that there was a time limit to bring her claim, and that the time started when the grant of probate was made. She was also critical of the claimant (and her solicitors) for their failure to adduce sufficient evidence to explain the delay in bringing the claim.

It seems that Mrs Hendry’s position would have been improved had (i) a protective claim been issued as soon as possible after her advisers realised they had missed the time limit; and (ii) the other side’s solicitors been informed about what steps were being taken to remedy the position.

(4) Were negotiations begun within the time limit?

Mrs Hendry’s solicitors were engaged in correspondence with Mr Hendry, later with his daughter and executor of his estate, from as early as November 2016 informing them of Mrs Hendry’s intention to bring a financial claim. The court found that, in the technical sense, negotiations had been started within the time period, but concluded that these were inadequate for present purposes. Master Shuman stated that in order for there to be effective negotiations between the parties she would have expected, at a minimum, for the solicitors to set out some considered analysis of Mrs Hendry’s claim. As such, the ground to begin negotiations within the time period was not satisfied.

(5) Has the estate been distributed before the claim was notified to the Defendants?

Whilst the estate had not yet been administered, Master Shuman did not accept that there had been no prejudice. It was the testamentary wish of Mr Hendry that his two children should each receive an equal half share of his estate. This was in spite of the fact that there was no evidence that the children had changed their position in reliance on their inheritance.

(6) Would dismissal of the claim leave the Applicant without recourse to other remedies?

Master Shuman noted that refusing permission to grant this application would not leave Mrs Hendry without recourse to other remedies; she has a potential claim against her solicitors for professional negligence as they had admitted that they missed the time limit.

(7) Looking at the position as it is now, does Mrs Hendry have an arguable case under the Act if the judge allowed the application to proceed?

Having considered (amongst other things) the terms of a pre-nuptial agreement, Master Shuman determined that Mrs Hendry had an arguable case, albeit not a strong one, but that this was outweighed by her failure to act promptly in the circumstances. The judgment makes clear that the Act sets out a substantive not a procedural time limit and that Mrs Hendry had not shown sufficient grounds to satisfy a claim under section 4.


The judge’s refusal to grant permission to bring the out of time application depended to a large extent on Mrs Hendry’s inability to sufficiently explain the delay in bringing the claim, with relatively little regard being given to Mrs Hendry’s financial status. As such, this decision is a reminder of the need to bring claims under the Act as promptly as possible, or in any event to ensure that determined efforts to negotiate and expedite claims are demonstrated.

It is also a stark reminder for solicitors acting for claimants for financial provision under the Act to give the deadline to apply for permission its due importance. Failure to do so will not only result in a potential refusal to grant permission for an out of time claim, but may also result in a negligence claim against the firm.