25 February 2020 | Comment | Article by Roman Kubiak TEP

Can claims under the Inheritance (Provision for Family and Dependants) Act 1975 be brought out of time?

The recent appeal decision of the High Court in the case of Thakare v Bhusate EWHC 52 (Ch) has upheld a widow’s right to pursue a claim for financial provision from her husband’s estate, despite being more than 26 years out of time and 30 years after her husband’s death.

Where an estate makes no, or only limited financial provision to a spouse, civil partner, former spouse, former civil partner, children, those treated as children by the deceased or any other persons maintained by the deceased, the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”), allows that person to make a claim against the deceased’s estate for reasonable financial provision.

Section 4 of the Act confirms that any claim must usually be brought within six months of the date of the grant of probate or letters of administration. However, the courts have discretion to extend the limitation period for bringing a claim under the Act.

There have been a number of notable decisions recently where individuals have sought permission to bring claims outside of that six month period, most notably the first instance decision in Thakare and the decisions in Cowan v Foreman, both at first instance and on appeal.

A constant message from the courts is that every application is determined upon the individual facts of the case. The matters to which the court has particular regard are: the merits of the overriding claim for financial provision, the reason(s) for the delay in bringing the claim, any steps taken to administer the deceased’s estate and whether the claimant has any other alternative remedy to a claim under the Act.

In the Thakare appeal, Mrs Bhusate, the widow of Mr Kashinath Bhusate, sought financial provision from her husband’s estate. Mr and Mrs Bhusate had married in 1979 in India. Mr Bhusate had been married a number of times previously and had five children from those previous marriages. Mr and Mrs Bhusate had later moved to the United Kingdom and lived in London until Mr Bhusate died intestate in 1990.

In 2019, at first instance, Chief Master Marsh allowed Mrs Bhusate permission to bring her claim out of time, at which point it was some 25 years after the grant of probate. In reaching that decision, he noted the difficult relationship between Mrs Bhusate and her stepchildren and his view was that they had taken steps to frustrate and delay the administration of their father’s estate.

The stepchildren appealed that decision to the High Court. In dismissing the appeal, Mr Edwin Johnson QC held that it would not be appropriate for him to interfere with the decision at first instance, again citing the actions of the stepchildren as a factor as to why the administration of the estate had been unable to progress.

While this decision represents by far the longest period an applicant has been permitted to bring a claim under the Act out of time, it should not be considered a precedent that such applications will always be allowed. As set out above, any application brought outside of the usual six month period will be determined on its own particular facts. There will inevitably be cases where for entirely good reasons, a claim is not brought within the limitation period and the courts have recently tended to lean towards allowing such claims where the overriding merits are strong.

However, anyone considering bringing such a claim should seek specialist advice at the earliest possible stage with a view either to bringing that claim within the period specified within the Act or as soon as possible thereafter.

Author bio

Roman Kubiak TEP

Partner

Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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