In the first quarter of 2020 we have seen a couple of interesting Inheritance (Provision for Family and Dependants) Act 1975 cases.
Weisz v Weisz
In Weisz v Weisz ([2019] EWHC 3101 (FAM)) a successful application for interim provision pursuant to section 5 was made and is a reminder to practitioners of the usefulness of this section. Section 5 allows for the court to make interim payments if it appears that the applicant is in immediate need for financial assistance, but it is not possible to determine yet what award (if any) should be made. It can be useful as claims are based on applicants having a financial need, but they can take 12-18 months to reach trial.
In this case the value of the estate was circa £4M. The claimant was the Deceased’s widow and she sought monthly provision of £8,511.78, a lump sum of £20,000 to discharge a loan and a payment of £55,578 on account of her legal fees.
Her claim for £20,000 to repay the loan was rejected, but she was awarded the full amount of her legal fees and £5,200 per month (slightly less than she had sought but based on the judge’s view of her reasonable day to day living costs) pending the conclusion of her substantive claim. She undertook to repay these sums in the event her overall claim was unsuccessful, or the value of her interim provision exceeded her total award at trial.
What was particularly interesting about this case was the judge’s comments on the costs.
He expressed concern ‘if not astonishment’ at the costs incurred in the context of the total amount being sought in interim provision and said ‘it cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today's application’, and he went on to say that he hoped the parties reflected on the fact that ‘if this were a commercial deal rather than a family row, they would not have spent this amount of money on this litigation because it would not be commercially sensible to do so, and the only way they are going to settle this litigation … is by standing back and taking a commercial view, on advice’.
Thakre v Bhusate
In Thakre v Bhusate (2020 EWHC 52 Ch) the Deceased’s widow, Mrs Bhusate, has been granted permission to bring a claim under the Act more than 25 years out of time, and 30 years after her husband’s death, the longest delay to have been considered by the court under section 4. This was an appeal of the earlier first instance decision which had found in the widow’s favour.
Normally, a claim has to be brought under the Act within 6 months of the date of the grant of probate. It is possible to apply out of time under section 4 of the Act in limited circumstances, and the court has an unfettered discretion to allow such applications. The court will only grant permission if it is satisfied there is a meritorious claim, there is no prejudice to anyone of the claim being pursued (usually where the estate is still yet to be distributed) and will consider the reasons for the delay.
In this case, the widow was the Deceased’s third wife and there were children from his previous relationships. He died intestate. Negotiations were ongoing but agreement was never reached and the court, in reaching its decision, noted that the step children had been obstructive and was satisfied that that was the reason for the delay.
This follows two notable 2019 decisions on the question of allowing claims to be brought out of time. Cowan v Foreman ([2019] EWCA Civ 1336) was more famous for the judge’s comments on the legitimacy of standstill agreements rather than the actual substantive application. But in both that case and the later case of Begum v Ahmed ([2019 EWCA Civ 1794), both applicants (also widows) were allowed to apply out of time.
This case is a useful consolidation of the law in this area, especially after the uncertainty surrounding last year’s cases. The judge made it clear that a lengthy delay without reasonable explanation is still likely to result in an application being refused. Further, it remains the case that the key factors the courts will take into account are prospects of overall success and the likely prejudice caused and the length of the delay is almost immaterial.
