Under Section 4 of the under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), a claim must be issued to the Court within 6 months of the date of the Grant of Probate unless, on an application to the Court it permits otherwise.
Cowan v Foreman  EWCA (Civ)1336
The Court of Appeal has ruled that in a late application for such a claim, the facts as to whether the case has a strong chance of success is a more important factor than deciding what the reasons are for the delay in bringing that claim.
In this case Mrs Cowan brought a claim against the Estate of her deceased husband. Probate was granted in December 2016 but Mrs Cowan’s application to the Court to extend the 6 month period was not made until November 2018, some 17 months out of time.
The Deceased’s Estate was worth almost £16m. In the Deceased’s final Will written shortly before his death, he placed the majority of his Estate into a discretionary Trust for the benefit of Mrs Cowan as well as a number of other Beneficiaries.
In his Letter of Wishes directed at the Trustees responsible for administering the Trust, the Deceased emphasised that he intended Mrs Cowan to be the principle Beneficiary under the Trust.
After a relationship with the Deceased for over 20 years, Mrs Cowan was not satisfied with this arrangement. She brought her claim under the 1975 Act against the Deceased’s Estate on the basis that although she would receive a generous income from the Trust, she had neither control over the discretionary Trust Fund nor any assets (including her marital home) in her own name.
Probate was granted and her legal team lodged her claim and entered into negotiations with the Trustees of the Deceased’s Estate.
Whilst settlement discussions were ongoing, the parties agreed not to raise expiry of the 6 month limitation period as an issue in the proceedings through a “standstill agreement”. Final settlement was not reached however between the parties and the case proceeded to Court.
High Court Decision at First Instance
Mrs Cowan issued court proceedings 17 months after the limitation period had expired. The Court considered Mary’s application to deal with her claim out of time. Mr Justice Mostyn dismissed the application but gave her the right to appeal his decision.
Court of Appeal Judgment
The Court of Appeal allowed the appeal and gave her permission to commence proceedings outside of the prescribed 6 month time limit.
Lord Justice Asplin ruled that it was necessary to determine whether a case has “a real prospect of success” having regard to all of the circumstances of the case.
It was also held:
- That it will not always be the case that there must be a “good reason” for the delay in bringing a claim. Each case will turn on its own facts;
- The Court’s discretion to extend the time limit under the 1975 Act is not intended to protect the Court from “stale claims” – it is there to protect the Personal Representatives of an Estate from personal liability for claims that may subsequently materialise;
- The decision about whether to extend the time limit of 6 months is not for the parties but it is a power that belongs to the Court. Any agreement between the parties not to raise an issue with delay therefore does not guarantee the time limit will be extended. However, helpful guidance in this case indicates that provided certain steps are taken to obtain all prospective parties’ consent and to document the agreement in writing, then a Court presented with an application to extend time when negotiations have failed is likely to permit the claim to be pursued notwithstanding that the usual time limit has expired;
- It may be appropriate to give weight to negotiations which take place after the expiry of the limitation period. Mrs Cowan had been invited into negotiations and mediation in order to resolve her claim and the Court felt that she should not be penalised for that conduct.
Sympathy for Claimants
Whilst every effort should be made after the death of a loved one, to consider bringing a timely claim against their Estate for financial support, this decision shows that the Court has some sympathy towards potential claimants and those seeking to resolve matters between them without the involvement of the Court.
At the time of loss, bringing a claim through litigation is not going to be at the forefront of the bereaved’s thoughts and based on the important and binding decision in Cowan, provided a claim has merit and strong grounds for success, delay in actually issuing the Court proceedings is unlikely to prevent a worthy individual from recovering what, in the Court’s view, should have been left to them under the terms of the deceased’s Will provided everyone acts sensibly in agreeing and documenting their agreement to delay the issue of proceedings.
Remember that despite the Cowan decision, it is safer to ensure that any claim is made within the 6 month time period so that the court’s discretion need not be relied upon.
If you would like advice regarding a potential claim under the 1975 Act please contact us for assistance