As discussed in our previous blog, it is incorrect to use a caveat to buy more time for a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act). Instead, if you intend to bring a claim under the 1975 Act, but it has already been over six months since the Grant of Representation (section 4 of the 1975 Act), you should consider making an application to the Court to extend the limitation period.
When considering your application, the Court will weigh up the circumstances of your case. There are no criteria or principles set out in the 1975 Act. The Court gave some guidance in the case of Re Salmon [1981] Ch 167:
‘… the time limit is a substantive provision- laid down in the Act itself, and is not a mere procedural time limited imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case of for it being just and proper for the court to exercise its statutory discretion to extend the time.’
You must therefore be able to:
- Show that your claim under the 1975 Act has a real prospect of success; and
- Explain the delay.
The Court will consider whether you acted promptly.
Settlement negotiations with the other side and deliberate concealment/obstructive conduct by the other side are good explanations for the delay.
If it was your conscious decision not to bring the claim, especially after seeking independent legal advice, and you later changed your mind, the Court would be unlikely to permit you to extend the limitation period.
If the limitation period is ending soon and you require more time to, for example, negotiate with the other side regarding settlement or seek independent legal advice, you may enter a standstill agreement on the limitation period with the other side to avoid issuing the proceedings.
The standstill agreement will not be conclusive, and you will still have to apply to the Court to extend the limitation period due to the wording of section 4 of the 1975 Act – ‘except with the permission of the court’ – but the Court will consider the content of the standstill agreement when making a decision.
The Court had the following comment on standstill agreements in the case of Cowan v Foreman [2019] EWCA Civ 1336:
‘I should stress however, that if parties choose the “stand-still” route, there should be clear written agreement setting out the terms/duration of such an agreement and each of the potential parties should be included in the agreement. In the event that proceedings have, in due course to be issued, the court should be presented with a consent application for permission to be granted notwithstanding that six months has elapsed.’
Key Takeaways
- Keep the personal representatives and beneficiaries informed of the intention to bring a claim against the estate under the 1975 Act;
- Act promptly in terms of negotiating with the other side and seeking independent legal advice.
- Keep a record of the steps taken by you so that any delay can be later explained to the Court; and
- Consider making a written standstill agreement with the other side.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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