Under the Inheritance (Provision for Family and Dependants) Act 1975 certain family members, particularly spouses, can make an application to the Court for financial provision if they do not feel that they have been adequately provided for on the death of a close family member.
Claims of inadequate financial provision are becoming increasingly common as couples are entering into second marriages, but making Wills leaving their assets to the children from their first marriage meaning that their surviving spouse receives little or nothing.
Should a spouse need to challenge the Will there is a strict 6 month time limit after the grant of probate, but what happens when the surviving spouse didn’t know that they could make a claim and certainly wasn’t aware that there was a 6 month time limit?
The recent cases of Bhusate v Patel and Cowan v Foreman show that failing to bring a claim within the required time is not fatal and in the case of Bhusate the claim was allowed 25 years after the death of the spouse.
The Cowan v Foreman case confirmed that Courts should consider the following matters on any application after the 6 month limit:
- The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
- The onus is on the Applicant to show sufficient grounds for the granting of permission to apply out of time.
- The court must consider whether the Applicant has acted promptly and the circumstances in which they applied for an extension of time after the expiry of the time limit.
- Were negotiations begun within the time limit?
- Has the estate been distributed before the claim was notified to the Defendants?
- Would dismissal of the claim leave the Applicant without recourse to other remedies?
- Looking at the position as it is now, has the Applicant an arguable case under the Inheritance Act if I allowed the application to proceed?
An interesting point raised by the Court of Appeal in the Cowan v Foreman case was that the Judge commented that it is not necessarily true that there must be a good reason for the delay in every case.
The above cases appear to show that the Courts may have sympathy with individuals bringing claims after the 6 month limit, particularly where they can show that they have a good claim to financial provision from the Estate of the deceased. Delay therefore may not mean the end of a potential claim.