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• Author: Ranjeet Johal

How long is too long: Part 2

The decision in Sargeant v Sargeant [2018] EHC 8 (Ch) provides an interesting insight into bringing a claim out of time under the Inheritance (Provisions for Family and Dependents) Act 1975 (‘the Act’).

A claim under the Act must be brought within six months from the date on which the grant of representation is taken out, be it the grant of probate or the letters of administration. If a claim is not brought within this timeframe, it cannot continue without the permission of the court (section 2 of the Act).

When an application is made under section 2 of the Act, the court’s discretion is unfettered and it will consider a number of factors including:

1. Whether an application has been made promptly;
2. The circumstances in which the application has been made;
3. Whether negotiations were commenced within the time limit;
4. Whether the estate has been distributed;
5. If the application is not granted, whether the applicant has other remedies available; and
6. Whether the applicant has an arguable case.

(Per Black LJ, Berger v Berger [2013] EWCA Civ 1305).

In this case, the claimant applied a very long time after the expiry of the six month period, namely 10 years after the grant of probate was obtained! This is longer than in any reported case in which permission has been granted.

The claimant was the wife of the deceased. The estate at the time, in March 2006, was worth around £3.2 million pounds: although it is now said to be worth at least £8 million due to development value. The bulk of the estate was placed in a discretionary trust, of which the claimant was one of the beneficiaries. The trustees (who were also the executors of the estate), were the family solicitor and the deceased’s daughter. The deceased had intended the claimant to benefit from the trust – primarily from income generated from the land. However, the income which had been anticipated by the deceased did not arise. The estate was asset rich but cash poor.

Over the years, several discussions were had about the trust, about the claimant’s entitlement and about the money she was receiving. The claimant felt that she was not being suitably provided for, and that the trust was not being used in accordance with her husband’s wishes. However, the claimant failed to bring a claim until July 2016.

The claimant argued that she should be able to bring her claim out of time as the delay had not been fatal to her claim. She still a good claim and the fact that the estate had not been distributed meant that if she succeeded, there were still assets available to distribute to her. She also argued that she had never received advice that she could bring a claim under the Act.

The application for permission to bring the claim out of time was rejected by the Judge. Whilst the claimant did have an arguable case, the material facts had not been concealed from her and it was open to her to have made an application much sooner. Furthermore, there had not been a real material change in circumstances.

It is clear then that an arguable case and the fact that the estate is intact will not be enough to make up for a significant delay in applying. If you have a potential claim under the Act, you should seek legal advice with a view to bringing your claim as soon as possible.

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