Limiting the time period for bringing a claim in Contentious probate

Limiting the time period for bringing a claim in Contentious probate

A landmark ruling in a contentious probate case has recently been reported upon by Gordon Exall, Barrister, Zenith Chambers, Leeds & Hardwicke, London. The case, in which a ‘limitation amnesty’ was agreed between parties in reference to a claim that the monies left on trust by her late husband, were not sufficient to meet her needs, has hit the legal press following a statement in the ruling by Mr. Justice Mostyn.

 

In the case of Cowan v Foreman & Ors [2019] EWHC 349 (Fam), a number of important principles have been set out in relation to applications for a change to the monies left on trust to a surviving spouse. The applicant wife brought forward an application to claim that an increase in funds was required to achieve the living standards to which she had become accustomed before the death of her husband. The authorised time to make a claim for the applicant had passed in June 2016 following the framework set out within the Inheritance (Provision for Family and Dependents) Act 1975. In January 2018, the respondents’ solicitors wrote to the court, stating that “In the first instance, I can confirm that the executors of Michael’s estate… and the trustees of the two trusts established by Michael’s will… will not take a point on the six-month deadline having passed pending receipt of a letter of claim.”

 

However, a letter of claim was not sent until May 2018 and proceedings were not issued until November 2018, a total of over 13 months of delay- not agreed by the Court, but by the parties.

 

This landmark case brought forward the ruling that the parties involved do not have the power to suspend the time period in an inheritance act claim. The judge was very clear in his statement that under the Act, only the Court can decide upon extensions to time. In statement, the judge said; ‘I was told that to agree a stand-still agreement of this nature was “common practice”. If it is indeed common practice, then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the Court. If the parties want to agree a moratorium for the purposes of the negotiations, then the claim should be issued in time and then the Court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock-a-snook at the clear Parliamentary intention.’

 

The solicitor’s letter arrived on the 1st May 2018- inevitably halting the moratorium, as is customary. Whether the delay was agreed legally or not, the receipt of the letter moved the case to the next stage, where the claimant must issue their claim immediately. The following 6-month delay until the claim was issued on the 8th November 2018, further frustrated the Court. It was explained that the delay was due to a mediation period between the parties. However, the judge stated that ‘In my judgement that is no excuse for this further delay given the clear terms of the expiration of the moratorium.’ The judge continued to state that ‘the period of delay is very substantial: more than twice the period allowed by Parliament for making a claim. In my judgement, absent highly exceptional factors, in the modern era of civil litigation the limit of excusable delay should be measured in weeks, or, at most, a few months.’

 

In short, this landmark case has confirmed the need to follow the rules any Acts of law referring to contentious probate. Where it used to be acceptable for parties to agree to freeze time, the Court have now decreed that they cannot.

 

If you require advice or support, are facing issues around probate or a claim on an estate, in the first instance, please contact Ruth Jewell at Lawson-West on rjewell@lawson-west.co.uk or by calling our Leicester office on 0116 212 1000.

 

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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