Another look at bringing Inheritance Act Claims out of time

A recent case in the Family Division Kaur v Bolina gave a very helpful summary of the considerations that will be taken into account in allowing a Claim to proceed under s4 of the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) when the claim is brought after the six month time limit within which claims must be issued.

By s4 of the Act a claim cannot be brought more than six months after the date of the Grant of Probate except with the permission of the Court. The law on the circumstances when such permission would be exercised was last comprehensively considered in the case of Cowan v Foreman, in which, at first instance, some consternation had been caused by the judicial questioning of the practice of parties entering into standstill agreements to extend the six month time period.  The Court of Appeal’s subsequent judgment in 2019 alleviated some of that concern, and set out the considerations which will determine permission to bring a claim out of time. These were restated in Kaur v Bolina by the Honourable Mr Justice Cobb, as follows:

“i) The purpose of section 4 is not to protect the court from stale claims but to avoid the unnecessary delay in the administration of estates which would be caused by the tardy bringing of proceedings and the complications which might arise if distributions from the estate were made before the proceedings were brought;

ii) That, therefore, if the circumstances warranted it, the power in section 4 should be exercised to further the overriding objective of bringing stale claims before the court where it would be just to do so;

iii) The overriding objective and ancillary provisions of the CPR 1998 (Civil Procedure Rules) are all concerned with managing a claim proportionately and fairly once it has been commenced, whereas section 4 is concerned with whether, given all the circumstances of the case and the delay, it is appropriate to allow a claim to be issued more than six months after a grant of probate/letters of administration;

iv) That there was no disciplinary element to section 4 and, unlike the provisions of the CPR, the six-month time limit in section 4 was not to be enforced for its own sake. The section 4 time limit was expressly made subject to the court’s permission to bring an application after the limit passed; it is designed to bring a measure of certainty for personal representatives and beneficiaries alike;

v) That, when determining whether to permit a claim to be brought outside the six-month period, the applicant had to present “a substantial case”; the court had to consider all matters “in the round”, have regard to the relevant circumstances of the case in question, and consider seven relevant factors, namely:

a) that the court’s discretion was unfettered but was to be exercised judicially in accordance with what was right and proper,

b) that the onus was on the claimant to show sufficient grounds for the granting of permission to apply out of time,

c) whether the claimant had acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit,

d) whether negotiations had been begun within the time limit,

e) whether the estate had been distributed before the claim was notified to the defendants,

f) whether dismissal of the claim would leave the claimant without recourse to other remedies and

g) whether the claimant had an arguable case; “The court will not entertain a claim with no merit which is commenced outside the six-month time limit, merely because the delays can be explained and no one is prejudiced. The corollary is not necessarily true. If the claim would pass the summary judgment test, it does not mean that the court will exercise the section 4 power to extend time. It is dependent upon an evaluation of all of the relevant factors in the circumstances” (§52 Asplin LJ);

vi) that if the claimant had a strong claim for reasonable financial provision, it might be appropriate, taking into account all of the other relevant factors, to permit the claim to be brought out of time despite the lack of a good reason for the delay or some part of it (“the power to extend time may be exercised even if there is no good reason for delay”) (§68 Asplin LJ).”

Kaur v Bolina was a claim by the deceased’s spouse, and related to a modest estate worth approximately £350,000 comprising primarily a house which the deceased husband’s family had owned for many years. The Claimant was much younger than the deceased and had moved into the deceased’s house originally as a student lodger.  They started a relationship and married in 2012 when the deceased was 60 years old. The marriage was strongly opposed by the deceased’s family and was turbulent involving allegations of domestic violence on both sides. In 2014 the marriage appeared set to end in divorce, and a petition was issued by the deceased. At this time the deceased also made a will excluding his soon-to-be ex-wife, the Claimant, and leaving his estate to his two grown up children from his first marriage. However, the couple reconciled after the Will was made and lived together again at the house and the petition was withdrawn. In 2018 it seems that the relationship finally broke down, and the deceased petitioned for divorce again. The Claimant moved out for the final time in February 2019. By the time of the deceased’s death seven months later the divorce had not progressed and the couple were, legally, still married.

The Claimant said that she was not informed for some months about the deceased’s death or that a grant of probate had been quickly obtained in December 2019. She had lodged a caveat in the estate and intimated a claim under the Inheritance Act to the Defendants in late May 2020. The probate registry did not inform her that a grant had already issued. She said that she also never received a letter in reply from the Defendants’ solicitors on 15 June 2020 telling her that a grant of probate had already been obtained and the estate distributed.  The claim became out of time in mid-June 2020. In July 2020 the Claimant instructed new solicitors who wrote to the Defendants outlining her claim. The Defendants denied having received that letter. On the expiry of the caveat in November 2020 the Claimant’s solicitors discovered that a grant had been issued in December 2019 and accordingly issued proceedings the same day, which were then 5 months out of time.

The Claimant asked for permission to be granted under s4 of the Act to bring her claim out of time and this was dealt with as a preliminary issue. She argued that she had not been informed in a timely way about the grant, and she asserted that she had a meritorious claim as a spouse.  Spousal claims under the Act involve an assessment of what would have been awarded upon a hypothetical divorce at the time of the deceased’s death. The Claimant asserted that she would have received financial provision upon divorce and that accordingly it was unreasonable that no financial provision had been made for her by the deceased’s 2014 Will.  She said that she had been dependent upon the deceased when she lived with him, including after the Will was made, and that when they were together he had repeatedly promised her that the house would be left to her. She said she had made a contribution to the marriage in terms of caring for the deceased’s elderly mother who lived with them and had Alzheimer’s disease.  She said that she should have been told by the probate registry when she lodged her caveat that probate had already been granted. She also argued that in the scheme of things and given that she was not aware of the position regarding the time limit, but had intimated a claim before it expired, a delay of 5 months was not very long.

The Defendants argued that the claim was not meritorious as the house had been owned by the deceased’s family for many years and was not matrimonial property and so upon a divorce she would not have been able to obtain it.  Further it was argued that the marriage had been over long before the deceased’s death (which seems a surprising argument given that the Claimant only moved out 7 months earlier) and that the Claimant had not been transparent about her financial situation so they could not assess the value of any award for her. They disputed that the Claimant did not know about the deceased’s death for some time, or was unaware of the grant which they said they told her about in June 2020. They relied upon the deceased’s clear testamentary wishes to exclude the Claimant as a beneficiary.

The judge found in favour of the Claimant and gave her permission to bring her claim late under s4. Primary to that was an assessment that as a spouse of very limited means, she had a claim of some merit, and the Defendants’ argument that upon divorce she would not have received anything as the deceased’s assets were not matrimonial property, would not have succeeded. It was not a short marriage but one of 7 years and the non-matrimonial property argument in respect of the house was of less importance given the length of the marriage. The Claimant had also issued proceedings as soon as she had discovered the grant, and the Defendants were also on notice of the claim before the time expired and had received correspondence about it. Although the estate had been distributed by the Defendants to themselves, it was a simple estate only involving the two defendants as beneficiaries, so that factor was less important. The claim was not a “stale claim”. Reasonable financial provision had not been made for the claimant by the Will given her apparent means, and she would most likely have received some modest provision from this small estate by bringing her claim. On a cross check with the Cowan v Foreman factors, the judge said it was “right and proper” for the court to exercise judicial discretion in her favour, and the claim was remitted to the County Court for directions to be made.

The judgment provides a concise and helpful summary of the law on s4 and then goes on to illustrate how the Court weighs the relevant factors to the granting of permission out of time applying these particular facts. For example, certain factors such as the fact that the claim was not actually in “negotiation” were not of importance when considered against the fact that the Defendants were on notice of the claim when they distributed the estate. Similarly, the fact that the estate had already been distributed, which is generally regarded as a key s4 factor, was of less importance here because it was a simple distribution to the defendants themselves, presumably comprising mainly just re-registering the title to the house in their own names. It was unclear whether or not the Claimant would have had any redress against her solicitors if not allowed to proceed – they were only instructed after the time period had expired but did not discover the grant for another four months. However, proceedings were issued immediately upon the position being discovered. If in May or June 2020 the Claimant had discovered the grant, she would most likely have immediately issued proceedings then, within the time limit. The judge stated quite clearly that he had considered whether the exercise of the discretion would be right and proper, or in other words, fair. The deceased’s testamentary wishes in the 2014 Will were not given particular weight. While after the reconciliation, the deceased might reasonably have reconsidered those wishes, in fact the final separation probably meant that he remained happy with his Will (if he considered this at all). However, this did not outweigh the fact that no provision at all had been made for a spouse.

It is interesting to note that both this case and Cowan v Foreman involved spousal claims. Spousal claims are, of course, dealt with in a different way under the Act to other applicants’ claims where the question of reasonable financial provision is considered against the less generous “maintenance standard” which is discussed and analysed in detail by the Supreme Court in Ilott v Blue Cross, 2017 and can lead to differing results. The substantive merits of the claim brought out of time will be key to s4. It is perhaps not unreasonable to suggest that the substantive merits of a spousal claim will often be clearer to the Court considering s4 than in other types of claim, such as adult child claims which are generally regarded as being more difficult and have a greater risk of not succeeding. Therefore, it would be interesting to see the approach which a court may take to s4, post Cowan v Foreman where the substantive merits of the claim are more finely balanced than will often be the case in a spousal claim.