Delay In Inheritance Act Applications

The Inheritance Act (or the Inheritance (Provision for Family and Dependents) Act

1975 to give it its full title) is a very useful piece of legislation. It was passed to help spouses, children, civil partners, cohabitees and other surviving dependents who have been left to cope without sufficient money to enable them to get by. If a will (or intestacy) fails to make reasonable financial provision then an application to the court can be made and a judge will consider the applicants needs and resources against what would be reasonable for their maintenance based upon a range of factors that have to be taken into account.

There can however be a problem. An application for reasonable financial provision under the Act must be brought within six months from the date on which a Grant to the estate is first taken out. This is S4 of the Act. The court can however extend this period and grant leave to bring a claim after the six-month time limit. This article considers when such permission is likely to be given.

The judges in a number of decided cases have laid down guidelines on what must be considered. In doing so however it has been said that the power to extend the time limit will only be exercised sparingly. One reason for this is that the beneficiaries named in a will should not be left in limbo for an extended length of time

These are the guidelines which have evolved:

It is for the applicant to show sufficient grounds to extend the time limit and deprive those with its benefit;

how promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired;

Whether negotiations were carried out during the time limit

Whether the claim has been brought before the estate has been distributed.

Whether the applicant was able to satisfy the court that he had an arguable case that he was entitled to reasonable financial provision out of the estate.

Whether a refusal to extend the time would leave the claimant without redress against anybody, for example their solicitor.

In many cases a failure to issue the claim within six months is just down to mistake or ignorance. One eminent judge has said of this:

That any blunder of that sort should completely and finally deprive a litigant of recourse to the court would challenge the foundations of natural justice.

Another danger could be making the application too early.An application for provision should not be made before the grant. The application can be so made but a practical difficulty could be ascertaining who the personal representatives are or may be. Assuming they can be ascertained the action may still be struck out as being premature. Wait for the Grant by issuing a standing search at the Probate Registry.

An application to extend the time limit will normally be made in conjunction with the application for financial provision. The supporting affidavit in support should give full details of the reason for the delay and set out why it is in the interest of justice for leave to be given and why, if leave is granted, the beneficiaries will not be prejudiced. It should also include and deal with all the guidelines above.

by: Andrew John

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