It is strongly recommended to seek advice regarding any civil claim as swiftly as possible to avoid disappointment. In cases being brought against the estate of somebody who has died (commonly referred to as “contentious probate claims”) it is particularly relevant For the most common types of claims, the following time limits exist:

Type of claim Time limit
Inheritance (Provision for Family and Dependants) Act 1975e.g. where an applicant seeks provision to be made for them from the estate of the person who has died. Court proceedings must be issued within 6 months of the date of the Grant of Probate (where there is a will) or from the date of the Grant of Letters of Administration (where there is no will).
Validity Claim – e.g. where a Will is being challenged because it is believed that the testator lacked the relevant capacity to make the Will, or was unduly influenced when making their Will or did not know and approve the contents of the Will. No specific time limit but a delay may hamper the chance of success

 

For the purposes of this blog, the focus will be on claims brought under the Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) and what happens when a claim is brought after the 6-month time limit.

“Out of Time” Applications

The Act allows certain classes of people to bring a claim for provision to be made for them from an Estate, but the claim must be brought within 6 months of any grant of Probate or Letter of Administration. If a claim is not issued in Court within this time frame an Applicant (“Claimant”) will require the permission of the Court to bring the claim and this is not always granted. The Court has the discretion to allow “out of time” applications. In considering whether to exercise its discretion, the Court will conduct a careful analysis of a number of factors.

Factors considered by the Court

The case of Berger v Berger [2013] provides guidance on what the court considers in deciding whether to grant permission. The factors are as follows:

  1. What is right and proper;
  2. Can the applicant show sufficient grounds for the granting of permission out of time;
  3. Has the applicant acted promptly and in what circumstances the claim has been brought,
  4. Were negotiations begun within the time limit?
  5. Has the estate been distributed before claim notified to Defendants; and
  6. Would a refusal to allow the claim out of time leave the Claimant without a remedy?

 There is a further “threshold Test”:

“Looking at the position as it is now, has the Applicant an arguable [real prospect of success] case under the Inheritance Act if allowed to proceed?”

There is no “yardstick” that the Courts follow in deciding if to grant or refuse permission, it is considered subjectively on a case by case basis, taking into account the factors and considerations above. In a recent case, an application was refused which was 2 months out of time, however, in the case of Bhusate v Patel [2019], the courts allowed an application which was 25 years out of time.

In Bhusate v Patel [2019], the courts considered:

  1. The merits of the case;
  2. The explanation for the delay;
  3. What steps had been taken to administer the estate;
  4. What would happen if permission to apply was refused; and
  5. Whether the application has any other remedy outside of an Inheritance claim.

Permission was granted to bring the claim out of time mostly due to the fact that the estate had not yet been administered and the fact that the applicant was living in the estate property and faced being made homeless if permission was not granted.

It is recommended that advice is sought at the earliest opportunity and claims are brought as soon as possible.

Further information

Our specialist, experienced and friendly team are happy to assist in bringing or defending an Inheritance Act claim. For further information or a free initial telephone appointment, please contact our probate litigation team on 0161 941 4000 or email your enquiry to lawyers@myerson.co.uk.