The Inheritance Act imposes a short deadline in which to start claims.  A claim must normally be started within 6 months of the date of the Grant of Probate or Letters of Administration.  However, it is possible to apply out of time and the Court can allow that in some circumstances, but it is by no means guaranteed.  The best advice is always to issue proceedings, and then seek a stay if you wish to continue investigating or to negotiate with the other side.

The recent case of Berger v Berger [2013] EWCA Civ 1305 was about whether permission should be given for a claim to proceed out of time.  The Claimant started proceedings 6.5 years after the Grant of Probate had been taken out.  Her husband died on 26 June 2005, and a Grant of Probate issued on 27 January 2006.  She did not start proceedings until 15 June 2012.

Briefly, the background to the claim was that Mr and Mrs Berger started to live together in 1969, married in 1983 and had been together for 36 years by the time of his death.  Both had been married before, and had children from those first marriages.  The estate was worth around £7 - £7.5million - mainly property in this country and Arizona.  Mr Berger's intentions in making his will appear to have been to maximise the income available to his wife during her lifetime, but then to ensure that assets passed to his children on his wife's death.

Mrs Berger consulted two separate firms of solicitors shortly after her husband's death, but it does not appear that either advised her about the possibility of a claim under the Inheritance Act, or the short time limit.  She saw another solicitor during 2011 who advised her about the Inheritance Act but she did not want to issue proceedings at that time.  In the end she felt her standard of living was dropping so she started proceedings in June 2012.

The question was whether the claim should be allowed to proceed out of time.  The Judge at first instance (High Court) decided that it should not.  The reasons given were as follows:

  • Mrs Berger had not acted promptly in all the circumstances;
  • There had not been any negotiations within the time limit;
  • The estate had been administered to some degree (although it had not been fully administered);
  • There may be remedies available against other parties such as the original solicitors or the trustees of the estate.

Of these, the most important was that Mrs Berger had failed to act promptly.  She had taken advice within the time limit, but had not started Court proceedings and had no good reason for the failure to start such proceedings.

The decision was upheld on appeal.  The Lord Justices agreed that the delay was simply too long.  Mrs Berger had taken advice at a very early stage but had not chosen to start proceedings at that time.  There was no obvious reason why she had decided to start the proceedings in 2012 - nothing had changed regarding her income or her expenses, and no new information had come to light which would explain her decision to issue proceedings.

Mrs Berger was not given permission to apply out of time.

You should start proceedings as soon as possible under the Inheritance Act.  The fact that the Court has discretion to grant permission to apply out of time under the Act does not mean that it will do so.