Bringing An Inheritance Act Claim Out Of Time

The Inheritance (Provisions for Family and Dependants) Act 1975 (Act) allows specified classes of people to bring a claim against a deceased’s estate where the estate otherwise fails to make a reasonable financial provision for them.

Our previous blog, here, sets out the criteria as to who can bring a claim pursuant to the Act and on what basis. Any claim made for financial provision under the Act must be brought within six months of the Grant of Probate being obtained. Failure to bring a claim within that six-month period will result in it being time-barred under the Limitation Act 1980, and you may only start a claim under the Act out of time in exceptional circumstances and with the Court’s permission.

Previous cases suggest that the Court is generally reluctant to grant permission to a late claimant unless there are exceptional circumstances that warrant it.

Re estate of Collier-White; Colbourne v Cooke and others

Case Summary

This recent case considered an application for permission to bring a claim out of time and shed some light on the type of circumstances in which permission might be granted. The Claimant sought to bring a claim for provision from her late mother’s estate in accordance with the Act but she was out of time, and this was due to an error on the part of her solicitors, whose case management system had failed to notify them of the deadline. Her application for permission to bring a claim out of time was defended on the basis that the Claimant should instead bring a negligence claim against her solicitors.

On considering the application, the Court weighed up the Claimant’s ability to bring a negligence claim against her solicitors. The difficulty in bringing a negligence claim would be to ascertain the loss caused by their failure to issue the claim in time, and a negligence claim may lead to a lower award to the Claimant than she might have sought from bringing a claim under the Act.

It is important also to consider whether the Defendant will be prejudiced by the Court giving permission and whether that outweighed the detriment the Claimant might suffer. The Court considered that if permission were given to the Claimant, the only prejudice the Defendant would suffer would have been the delay already incurred, with the uncertainty of the claim remaining as if it were brought in time.

The Claimant also alleged the Defendant had taken advantage of the Deceased and therefore refusing permission might allow the Defendant to obtain a windfall (assuming that the Claimant might be correct in making the allegations). Accordingly, the Court granted the Claimant permission to bring their claim out of time as this was deemed to be “in the interests of justice”.

The Court did take account of the fact that the Claimant was not personally at fault for the missed limitation date but this was not as strong a factor as there might have been an alternative course of action for the Claimant in this case. It was also paramount to consider the significance of any prejudice caused to the defendant. All such applications will fall on their facts and this case should not be taken to suggest such claims will be readily accepted. Instead, where the Claimant is in a position to issue the claim in time this should always be done, even if proceedings are only issued and not served immediately (there can be a delay of up to four months in serving a claim) with a view to ensuring the limitation date is not missed.

Comment

Six months can be a short period of time in which to seek advice and for the solicitors to fully investigate the merits of any claim. It is always sensible to seek legal advice at the earliest possible stage in order to ensure there are no bars to a claim being pursued and to ensure the claim could be dealt with in the most efficient and cost-effective manner.