Out Of Time But Not Out Of Luck!

It is fairly common knowledge that the majority of civil claims have stringent time limits within which to bring a claim. The majority of those time limits are set out in the Limitation Act 1980.

A much softer deadline for issuing a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (Act) is, however, set out in section 4 of the Act. This allows for a certain category of relatives/dependents of a deceased person to make a claim where they believe reasonable financial provision has not been made for them pursuant to the Will left by the deceased.

Section 4 confirms that a claim under the Act must be brought within six months of the date of the Grant of Probate unless the Court orders otherwise.

Case law – Wickham v Riley (2020)

The case of Wickham v Riley (2020) is interesting because the Court exercised its discretion not once but twice so as to allow the Claimant to proceed with a claim under the Act.

Alexander Wickham’s father died in 2014. Alexander was a child at that point and accordingly not in a position to bring a claim. Alexander’s mother was one of the executors of the estate and accordingly had a conflict of interest in terms of a claim being pursued by Alexander.

In 2017, when Alexander was 16 years old, he brought a claim through a litigation friend (as he was not old enough to pursue a claim himself at that point). Mr Justice Cohen made an order in 2018 recording that a settlement in principle had been agreed with all parties except Alexander’s mother, who wished to explore the tax position in respect of the same. The order recorded that reasonable financial provision had not been made for Alexander and the Court approved the terms of settlement proposed.

Surprisingly, in early 2019, Alexander discontinued his claim prior to the settlement being formally approved. This presented a further issue for Alexander, who later changed his mind and wished to pursue the claim. CPR Part 38.7 confirms:

Alexander therefore needed the Courts permission to start his new claim out of time under the Act pursuant to section 4 of the Act and for permission pursuant to CPR Part 38.7. Notwithstanding the mountain that Alexander had to climb in this regard, he managed to obtain an order permitting him to proceed. In respect of the permission application under the Act, the Judge found the following points persuasive in terms granting permission:

• The estate had not yet been distributed;
• Alexander was vulnerable as he had been diagnosed with autism spectrum disorder;
• He relied on his mother to an extent and she clearly had an inherent conflict of interest;
• Alexander has an arguable case – indeed a settlement in principle had been reached in the original case, which clearly supports such a suggestion and further there was an order recording no reasonable financial provision had been made for Alexander;
• There was no other form of redress open to Alexander other than the claim; and
• Negotiations and proceedings have long been in place.

Having made the finding that the Court would give permission to proceed under the Act, the Court moved on to consider whether permission should be granted, pursuant to CPR Part 38.7. In granting permission, the Judge was guided by the overriding objective to deal with cases justly and fairly, the fact that the time limit under the Act has a degree of discretion and the fact that the Defendants would no doubt have been surprised by the discontinuance given that a settlement agreement was very likely.

Comment

The case of Wickham v Riley demonstrates that the Court will, in certain circumstances, exercise its discretion in allowing a party to continue with a claim under the Act out of time. Each case will, however, turn on its own facts. The cases that the Court will grant permission to proceed are generally those with something out of the ordinary. It would be very surprising if the Court allowed a Claimant that was fully aware that a grant had been obtained, was of age at the time and simply allowed time to run out to proceed.