Under the Inheritance Act (Provision for Family and Dependants) Act 1975, individuals wishing to make a claim under the Act must do so within 6 months from the date of the issue of the Grant of Probate or Letters of Administration. In an ideal world, the application will be made in advance of the date. However, matters are not always straightforward and the 6-month limit can be missed for various reasons.
If the 6-month time period has passed, it is still possible to apply – with permission from the Court. Here is what you need to know about making an application for permission to bring a claim under the Act out-of-time.
When considering such an application, the Court has a general discretion and will weigh up all of the circumstances of the case. There are no criteria or principles laid out in the 1975 Act itself, however, we can draw guidance from the Court’s approach in other cases.
Does the claim have real prospects of success?
The strength of you claim is a key consideration. If the claim itself is hopeless (as it was described in the case of Re Dennis), it is unlikely that permission will be granted. The claim must have realistic prospects of success.
What is the reason for the delay in bringing the claim?
Courts have considered delays ranging from a few months (e.g. Kaur v Bolina) to over two decades (Re Bhusate – 25 years and 9 months, under exceptional circumstances).
Relevant factors to consider when exploring the reason for the delay are when sufficient legal advice was received; the age of the applicant; and whether there is an explanation for the delay. Explanations deemed to have been legitimate by the Courts are a deliberate concealment of the value of the estate (Re McNulty); an unexpected change in circumstances (Stock v Brown); and, obstructive conduct, as was the case in the exceptional matter of Re Bhusate referred to above.
If there is no explanation for the delay or a conscious decision not to, it is unlikely that permission will be granted.
Had negotiations begun before the expiry of the time limit?
If the parties had already begun negotiating and that is the reason for the delay, it seems likely that the Court will grant permission. However, the depth and seriouness of the negotiations should be considered and the Court are unlikely to be sympathetic to superficial discussions.
Has the estate already been distributed?
Claims become more complicated where the estate has been distributed. While the part of the estate distributed may be recovered, it presents another hurdle to overcome and the Court can be cautious about reversing distribution.
It was identified in Re Salmon that the distribution will mark be a real psychological change for the beneficiaries who have received the funds/assets. They may have changed their position in reliance on them, and it is inevitably going to be prejudicial to them if those funds or assets are later taken away.
If distribution has occurred, the Court will consider the extent of the distribution; how recently the distribution has been made; the nature of the asset(s) that have been distributed and of those remaining; and, whether there has been a change of position for any of the beneficiaries.
Ideally, no distributions should have occurred before applying.
Would dismissal of the claim leave the application without recourse to other remedies?
A common example of another remedy available to a potential claimant is a professional negligence claim. The Court will consider whether the alternative remedy(ies) available to the potential claimant would be prejudicial to them. For example, in Collier-White, the Court determined that the potential claim against the claimant’s solicitor was very different to the claim under the Inheritance Act and, therefore, limiting the claimant to that loss of chance claim would be prejudicial. The claim for permission was successful.
Even if you’re out of time, you’re not necessarily out of options. It is important that you:
- Act quickly once you realise you may have a claim.
- Gather evidence of delays, especially any misleading or obstructive behaviour.
- Document any negotiations before the deadline.
- Seek legal advice as quickly as possible.
At Wright Hassall, our expert team can assess your situation, advise you on your choices and support you through the process.
Visit our page on Inheritance Act claims for more legal support.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
