07/03/19

Claims for financial provision

 Delay at your peril

A judge has refused to grant a widow permission to issue a claim out of time under the Inheritance (Provision for Family and Dependents) Act 1975 (‘the 1975 Act’).

Under section 4 of the 1975 Act, other than in exceptional circumstances, applicants have 6 months from the date that a grant of representation is made in an estate to issue their claim with the Court for reasonable financial provision.

In the case of Cowan v Foreman & Ors. [2019], the widow sought permission to bring her claim 17 months after probate was granted in the estate, on the grounds that she had not appreciated the structure of her late husband’s will and the trusts arising from it and was unaware of the deadline to issue her claim.

In his judgment, Mr Justice Mostyn, sitting in the High Court Family Division, confirmed that the Court would look unfavourably on late applications in the absence of exceptional circumstances and that the limits of delays that the Court would consider ran only to “weeks, or at the most a few months.”

The judge concluded that, whether considering the case on evaluation of the facts or at his discretion, no such exceptional circumstances existed and indeed, the claimant had not shown good reason for her delay.  In addition, in his view the claim itself had “virtually non-existent prospects of success.” Permission to issue out of time was therefore refused.

Considering the correct procedure where the parties might agree between themselves a “stand-still agreement” to postpone the need to issue proceedings, Mostyn J confirmed that the Court should have the final say on the time limit for claims under the 1975 Act rather than the parties; a stand-still agreement cannot be used to “stop the clock.”

The correct procedure for the parties to agree a moratorium is for the claim to be issued with the Court and an application then made to the Court inviting them to stay proceedings for negotiation.

The judgment emphasised that the 6 month deadline in 1975 Act claims is there for a good reason; to allow the administration of estates to proceed, to protect beneficiaries from being vexed by “stale” claims and to spare the Court from the burden of such claims.

Our View

This judgment highlights the importance of acting quickly when looking to claim under the 1975 Act and is a timely reminder that the Court has the discretion to refuse to allow a late claimant to issue without good reason.

If you have been excluded from benefiting under a will and believe that reasonable financial provision has not been made for you then we recommend that you obtain legal advice straight away to avoid the risk of running out of time.

If you require advice and assistance in relation to a claim for reasonable financial provision, please contact our Inheritance & Trust Disputes Team on 01803 202020.

https://www.kitsons-solicitors.co.uk/service/inheritance-trust-disputes/

 

07/03/19

About the author

Kitsons Solicitors - Avril Simister

Avril SimisterTrainee Chartered Legal Executive

Avril is a Trainee Chartered Legal Executive in our Inheritance & Trust Disputes team

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