Month: November 2021

 

The Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) provides a clear timeframe for when a claim for ‘reasonable financial provision’ can be made. This timeframe can be found within Section 4 of the Act, whereby it states that a claim must be brought within 6 months of the date of the grant of probate.

If this date passes, Section 4 of the Act also states that provided you have received permission from the Court, a claim may still be brought after the limitation date.

When deciding on whether to grant such permission, the Court will consider various factors:

The Considerations of the Court

The Circumstances of the Claim

The Court will consider the circumstances surrounding the claim, and whether there had been any negotiations taking place within the 6-month limitation period. If negotiations were ongoing, the Court may consider granting permission. In addition to this, the Court will also require the reasons as to why the claim has been issued after the limitation date. If a good explanation can be provided, this may encourage the Court to grant permission.

Merits of the Claim

To put it simply, the Court will weigh up whether the claim for reasonable financial provision has a realistic prospect of success. If not, the Court is very unlikely to grant permission.

The Distribution of the Estate

A key factor the Court will consider is the extent to which the Estate has already been distributed. Whilst no distribution of the estate will not automatically lead to permission being granted, it may assist the Court as there is then a far smaller risk of prejudicing the existing beneficiaries.

 

The Claimant’s Other Options

Should the Court refuse permission, they will consider whether there are any other possible forms of redress available to the Claimant, such as a claim against a solicitor for failing to advise on the 6-month limitation period.

As well as the above, it is important to note the ruling in the case of Cowan v Foreman & Ors [2019] EWHC 349 (Fam), whereby it was ruled that only the Court can grant an extension to the limitation date. In this case, the parties agreed to an extension themselves, without seeking the explicit permission of the Court. Mr Justice Mostyn subsequently ruled these actions to be unlawful, and that parties should follow the rules as stated in the Act, and not seek to give away time that belongs to the Court. This position was dismissed, however, upon appeal, whereby the Court of Appeal ruled that written agreements such as standstill agreements did serve a useful purpose. This is further supported by the ruling in Bhusate v Patel [2019] EWHC470 (Ch).

Harry Mellors, Dispute Resolution team

Harry says:
“The 6-month limitation date exists to balance the rights of the existing beneficiaries and those that may wish to make a claim, and the Court takes this balancing act very seriously. As part of this balancing act, the Court appears to be willing to allow standstill agreements to be utilised, as long as the written agreement sets out the terms and duration of the agreement, with all relevant parties included.

It is critical that those considering making a claim are aware of the limitation date, and the options to extend this. If you require advice on a potential claim against an estate, do not hesitate to give our Dispute Resolution team a call to see how they can assist.”

 

If you are considering making a claim to contest a probate (maybe you believe you should have received part of an estate as a beneficiary and didn’t), or you wish to defend your role in the administration of a probate (you are an Executor on a deceased’s estate that is being challenged), then please Contact Us and our Dispute Resolution team is on hand to guide you through it.