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Is 25 years too long to claim?

Posted on 14th May, 2019

There have been 2 strikingly contrasting decisions recently from the courts on the 6 month deadline for issuing a claim under the Inheritance (Provision for Family and Dependents) Act 1975.

The judge was highly critical of the parties in Cowan v Foreman and Others [2019] EWHC 349 (Fam). Mrs Cowan was refused permission to pursue a claim against her late husband’s estate as her claim had been made nearly 17 months out of time. Under Section 4, Mrs Cowan’s claim ought to have been made within 6 months from the Grant of Probate.

The judge decided that there were no highly exceptional factors warranting him to apply his discretion to entertain the claim.

The parties had entered into a standstill agreement for a moratorium for the purposes of negotiations. The judge considered the claim ought to have been issued in time and the Court invited to stay the proceedings while negotiations were pursued.

The judge stated the time limit was there to protect beneficiaries from being vexed by a stale claim and to spare the court from being burdened with claims that ought to have been made earlier.

The judge noted that there was a period of delay before the claim was pursued after the supposed moratorium had expired.

The judge found that there were no good reasons for justifying the delay.

The judge commented Mrs Cowan had virtually non-existent prospects of success and had shown no good reason for her delay.

Mrs Cowan outlined there had been without prejudice negotiations and a mediation, but the judge found that was no excuse for the delay.

A contrasting decision was provided by the court in Bhusate v Patel and Others [2019] EWHC 470 (CH). Mrs Bhusate was granted permission to pursue a claim against her late husband’s estate, despite a lapse of 25 years after the deadline.

The judge commented it was very unusual for an application to be made for permission after such a long delay; Mrs Bhusate had demonstrated compelling reasons why it was right and proper for the court to exercise its discretion in her favour; the merits of Mrs Bhusate’s claim were very strong; the delay in bringing the delay had been explained; the defendants had obstructed the sale of the property in the residuary estate and, if the application was not granted, Mrs Bhusate would be homeless.

The judge accepted the longer the period of delay, the greater the burden Mrs Bhusate had to discharge.

The judge found by the time instructions were withdrawn for the sale of the property, Mrs Bhusate had effectively been powerless and it was not surprising that she had done nothing. The judge stated it was surprising the defendants had also done nothing, despite knowing the position needed to be resolved.

The Judge noted that there was some tension between the need to issue the claim promptly and the need to make real efforts to avoid contested proceedings. Mrs Bhusate’s advisors were right to encourage her to agree to mediation and making a claim was the only avenue available to Mrs Bhusate.

The judge referred to the judgment in Cowan v Foreman & Others and stated he did not consider when exercising discretion under Section 4, regard to the overriding objective or the approach to relief against sanctions was the correct approach.

The 2 cases highlight the difficulty the courts have exercising their discretion in relation to whether to permit claims being brought pursuant to Section 4 and highlights that each case is considered on an individual basis upon its own merits.

Do not hesitate to contact Inderjit Gill or any other member of the Dispute Resolution Team at Jacksons Law Firm for further details.

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