Posted by Calum Campbell, Associate
Inheritance Act claims: More uncertainty over time limits
In the recent case of Cowan v Foreman a widow attempted to make a claim on an estate 17 months after the relevant deadline had passed. The judge refused to give permission for her late claim, suggesting a stricter approach should be adopted by the court in the future. However, a recent decision in the case of Bhusate v Patel, to allow a widow to make a claim over 25 years out of time, suggests that this strict approach may not be adopted for every case.
Claims under the Inheritance (Provision for Family and Dependents) Act 1975 must normally be brought within six months of the date of the grant being obtained from the Probate Registry. However, Claimants are able to apply to Court for permission to bring a claim out of time and the Court has a discretion to allow this, if it believes it is appropriate to do so. This is primarily to enable the parties to have further time to negotiate a settlement at reduced cost, without commencing a court claim. Previous negotiations are therefore one of the key factors the court will consider when deciding whether to permit a late claim, in addition to whether the Court believes the case is likely to succeed.
A strict approach to the deadline?
In Cowan v Foreman the judge was of the view that applications to bring a claim after the deadline should be dealt with fairly robustly. He rejected the application to bring a claim 17 months out of time, believing the six month time limit was very important. In the judge’s view, it would rarely be appropriate to allow a claim that was more than a few months out of time, so 17 months was unreasonable in this case.
A lenient approach to the deadline?
The Cowan case contrasts significantly with the recent decision of a different judge in the case of Bhusate v Patel. In this case Mrs Bhusate was seeking to bring a claim to a greater share of the estate of her late husband, who had died in April 1990. The dispute had arisen between Mrs Bhusate and her step children, in relation to her ongoing occupation of the home previously owned by the late Mr Bhusate. As Mr Bhusate had not made a Will before he died, Mrs Bhusate did not inherit the entirety of his estate under the rules of intestacy in 1990. She did not, therefore, inherit Mr Bhusate’s entire home and this needed to be sold so that the proceeds could be divided between Mrs Bhusate and her late husband’s children. That said, given the value of the property and the inheritance she was entitled to receive under the intestacy rules, Mrs Bhusate would have received the vast majority of the sale proceeds in 1991. However, for various reasons, the sale did not take place at that time, nor in the years that followed.
This case initially came before the court late last year, with Mrs Bhusate claiming that she was entitled to receive the property entirely, and Mr Bhusate’s children claiming that the property should be sold and that Mrs Bhusate was now out of time for claiming her inheritance under the intestacy rules – which would effectively leave her without anything. Unfortunately for Mrs Bhusate, the judge sided with Mr Bhusate’s children on these issues.
This meant that Mrs Bhusate’s only chance of receiving an inheritance was to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. In order to do this, however, Mrs Bhusate needed permission of the court to bring a claim that was over 25 years out of time.
If the decision in Cowan had been followed, it would seem there would have been no prospect of Mrs Bhusate receiving permission. However, when looking at the circumstances of the case, the judge felt that it was appropriate for Mrs Bhusate to be permitted to bring her claim, despite the very lengthy delay.
Where does this leave potential claimants?
These two cases show that there is clearly uncertainty in this area and the facts of the case, not merely the length of the delay, will very much be relevant. However, with reports that the decisions in both cases may be appealed, it seems the uncertainty will continue for some time.
It therefore remains our advice that if you are considering contesting a Will, or a claim against an estate, it is important to act quickly.
You can seek a free initial opinion from our Contested Wills, Trusts & Inheritance Disputes team by contacting
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