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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 1975 – e.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.
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.
The case of Berger v Berger  provides guidance on what the court considers in deciding whether to grant permission. The factors are as follows:
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 , the courts allowed an application which was 25 years out of time.
In Bhusate v Patel , the courts considered:
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.
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 contesting a will team on 0161 941 4000 or email your enquiry to email@example.com.