Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) allows certain family members (namely spouses, former spouses, children and people maintained by the deceased) to make a claim against a deceased person’s estate if the terms of the deceased’s will (or the application of the Intestacy Rules) does not make ‘reasonable financial provision’ for the applicant.

The court has a wide range of powers to vary the inheritance that the applicant receives or to make an award when the applicant is due to receive nothing.

Under section 4 of the Act, the time limit for an applicant to bring such a claim is six months from the date of the Grant of Probate or Grant of Letters of Administration.

However, claims that are filed after this deadline can still be considered by the court using the courts discretion. A recent case of Bhusate v Patel (2019) allowed an application to proceed 25 years out of time. Whilst this definitely seems to be the exception rather than the rule, the court noted the following points that will be considered when an application is made out of time:

·The merits of the case;

·Whether the delay can be explained;

·Whether any steps have been taken to administer the estate;

·What would happen if permission to apply was refused; and

·Whether the applicant has any other remedy outside of an inheritance claim.

By weighing up these factors, the court in Bhusate v Patel decided that the applicant’s inheritance dispute had merit and was granted permission to proceed.

An interesting point about this inheritance dispute case is that if it had been considered within the 6 month time limit it would have probably failed. This is because under the Intestacy Rules, the applicant was due to receive a statutory legacy (which was at the time of the husband’s death £75,000) and a life interest in half the residue of the estate. Unfortunately, given the delay in administering the estate, the proceedings that the applicant brought to obtain payment for her statutory legacy and for her life interest to be capitalised were struck out because they were brought out of time. Indeed, the court is required to have regard to the applicant’s financial position at the date of the hearing, and not at the date of the deceased’s death.

This judgment demonstrates that even claims brought under the Act which are significantly late can be heard. Nonetheless, these types of cases are very fact-specific and it is important for potential applicants to take legal advice as a matter of urgency to ensure that claims can be issued on time, if possible. The key factors in this case were the fact that the estate hadn’t been administered and the fact that the applicant was living in the estate property and would have been made homeless if permission to pursue the inheritance claim out of time was not granted

When considering these types of inheritance disputes, the court will consider all of the relevant factors and will decide what is ‘right and proper’ when considering an out-of-time application.

The onus is on the applicant to prove why their out-of-time claim should be allowed.

If you would like information about an inheritance dispute or challenging a will, or if you have concerns about the way that an estate is being handled, please call 01384 410410 and ask to speak to Liam Owen or Susan Ford. Alternatively, you can e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details and we will contact you if we think we may be able to help.