Reasons to choose Wilson Browne
A recent decision in the High Court has made headlines….
….after the Master hearing the case granted permission to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 even though the claim was issued 25 years and 9 months after the six month deadline.
All breathe a sigh of relief then. After all, if you can bring a claim so long after the deadline why do lawyers make such a fuss about acting promptly when someone dies and a claim arises?
The facts of this case were peculiar.
Chief Master Marsh said the claimant in Bhusate v Patel & Ors had demonstrated “compelling reasons” why it was right and proper that the court should exercise its discretion in her favour. The Court found that the claimant was “effectively powerless” to take action sooner as her stepchildren had obstructed the sale of her property and then stood by for 23 years doing nothing to resolve matters.
Mrs Bhusate’s husband had died in 1990 and the Court held that the stepchildren had stood by until a claim was made, only taking the limitation point then to deprive her of a claim. Mrs Bhusate herself did not speak, read or write English when her husband died and had no real understanding of the steps to be taken when her husband died.
The success of this claim is highly unusual. Chief Master Marsh noted that if the application was not granted, the claimant would be left with no remedy at all and no benefit from her husband’s estate. She would effectively be left homeless.
But mere days earlier the Court had reached a very different – and no less controversial decision – in Cowan v Foreman.
In that case lawyers had followed a common practice of agreeing a “standstill” – each party agreeing that they would not take a point of limitation to allow discussions to continue without the need to issue Court proceedings.
Considering that case – where the delay was a mere 17 months after the issue of the Grant – Mr Justice Mostyn denied permission to bring the claim.
He identified two fundamental questions for the court to consider on an application to issue a claim out of time: (1) are there good reasons for the delay; and (2) does the claim have sufficient merit to be allowed to proceed to trial.
On the first issue, he concluded that there was no justification for the delay and that the “limit of excusable delay should be measured in weeks, or, at most, a few months”.
So far as the second question was concerned, he applied the test for summary judgment (as it was agreed he should) and determined that the Claimant had no real prospect of success since she was well provided for by trusts already in existence and her claim “would, in effect, introduce a form of forced heirship unknown to the law.”
The application was therefore dismissed, as was permission to appeal.
Given the answer to the second question, it may be that this was the right outcome but the answer to the first question is a stark reminder that you delay bringing a claim at your own risk – the Court will not always allow a claim to be brought late. Indeed, in Cowan the practice of using Standstill Agreements was heavily criticised by Mr Justice Cowan who commented “I was told that to agree a stand-still of this nature is “common practice”. If it is indeed common practice, then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court.”
If you consider that you may have a claim against an Estate following the death of a relative you should take immediate steps to obtain specialist advice from a solicitor with experience in dealing with such claims.