In what cases could the time limit be extended for bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
In the second of two articles, Davina Haydon, a partner in our specialist Inheritance and Trust Disputes Team, looks at two unusual cases where 1975 Act claims were permitted out of time.
What is the time limit for bringing a 1975 Act claim?
In my first article ‘Inheritance Act 1975 – what is the time limit for bringing a claim?’ I explain the strict six-month time limit within which to issue a 1975 Act court claim and set out section 4 of the Act.
Section 4 of the 1975 Act says the court can give permission to extend the six-month time limit. However, this is always at the court’s discretion. Permission to extend time should never be assumed. Best practice in all 1975 Act cases is to issue court proceedings within the six-month time limit.
Cases where there has been an extension on the 1975 Act time limit
In those cases where the courts have extended time under section 4, the judges have applied the so-called “Berger Guidelines” which say:
- The court’s discretion is “unfettered” but must be exercised judicially in accordance with what is “right and proper”;
- The onus is on the applicant to show sufficient grounds for the granting of permission to apply out of time;
- The court must consider whether the applicant has acted promptly to apply for the extension after the expiry of the time limit;
- Whether negotiations were begun within the six-month time limit;
- Whether the estate has been distributed before the claim has been notified to the defendants;
- Whether dismissal of the claim would leave the applicant without recourse to other remedies; and
- Whether the applicant has an arguable case if the claim is allowed to proceed.
Cowan v Foreman
In 2019, in Cowan v Foreman, the High Court judge applied the Berger Guidelines to the facts and took a very strict “disciplinary” approach. He refused to allow an application nearly 17 months after the six-month period had expired.
In the process, the judge criticised a so-called standstill agreement, which the claimant thought had been agreed with the defendants. The judge said it was: “not for the parties to give away time that belongs to the court”.
Fortunately for the claimant and her legal advisers, the Court of Appeal overruled that judgment later in 2019. The Court of Appeal disagreed with the judge’s application of the Berger Guidelines to section 4 and the very particular facts of the case where the deceased’s estate was valued at over £29million and his widow, the applicant, spent most of her time in California. Apparently, she had difficulty understanding the complexities of the Will and, it seems, had not appreciated the significance of initial verbal advice from English lawyers about the time to claim. As soon as she appreciated that she had a claim, the Court of Appeal was satisfied she acted quickly.
The Court of Appeal also rejected the suggestion that there was no place for standstill agreements in 1975 Act claims but still cautioned that there are risks in agreeing them and said they must be clear in their terms especially on the duration of the agreement.
Thakare v Bhusate
In the 2020 case of Thakare v Bhusate, an application for more time was made 25 years and nine months after the expiry of the six-month time limit!
This was also allowed on appeal.
However, this was described as a very “remarkable” case if not “unprecedented” due to the applicant’s limited English, lack of access to legal advice and her husband’s children allegedly obstructing for 20 years the administration of the estate and not agreeing to a sale of the property. In the intervening years, the value of the property increased from £135,000 in 1991 to around £825,000 in 2019.