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• Contested Wills & Inheritence Disputes, Contentious Probate, Probate
• Author: Ranjeet Johal

How long is too long (part 3)?

This is the third article on our series on limitation periods. For the first and second parts, please follow the links below:

https://www.millschody.com/2018/02/12/how-long-is-too-long-part-1/

https://www.millschody.com/2018/05/06/how-long-is-too-long-part-2/

In circumstances where it is said that reasonable financial provision has not been made, the Inheritance (Provisions for Families and Dependents) Act 1975 (‘the 1975 Act’) gives the court the ability vary the distribution of the deceased’s estate for certain family members and dependants.

A claim under the 1975 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 1975 Act). The court has a discretion as to whether a claim should be allowed to continue if it is brought out of time.

The decision by Mostyn J in Cowan v Foreman & others [2019] EWHC 349 (Fam) gives further guidance on the exercise of the court’s discretion in circumstances where a claim is made out of time.

The deceased, Michael Cowan, was worth around £16m at the date of his death on 9 April 2016. Prior to his death, he prepared a will in which he created two trusts: one containing his business interests; and the other containing the rest of his property. Both were discretionary trusts and his wife, along with other members of his family and various charities, was made a beneficiary of these trusts. The will was accompanied by a letter of wishes, which showed the deceased’s intentions clearly. In particular, he expressed a wish that his wife was to receive an income from the trusts and if she made any requests for capital, these requests should be considered generously by the trustees.

Probate was obtained on 16 December 2016 and so the limitation period for a claim under the 1975 Act expired on 16 June 2017. In December 2017, the wife started to explore the possibility of bringing a claim. On 25 January 2018, solicitors for the estate confirmed that they would not take a point of the limitation period having expired pending receipt of a letter of claim. That letter arrived on 1 May 2018. Proceedings were then not issued until 8 November 2018.

The Judge considered that the appropriate test in exercising the courts’ discretion was a two-stage test. The claimant would have to show good reason in justifying the delay in bringing proceedings and that she had a claim of sufficient merit to be allowed to proceed to trial.

In giving judgment, the Judge was highly critical of the parties having agreed their own moratorium and suggested that in no future claim should a privately agreed moratorium ever count as stopping the clock or as a good reason for delay.

The delay in bringing proceedings of almost 13 months was considered to be a very substantial delay and was considered inexcusable by the Judge. The Judge also held that the wife did not have a claim of sufficient merit. As such, her application for permission to bring her claim out of time was dismissed.

This case highlights the importance of acting promptly in bringing a claim under the 1975 Act. It also serves as a warning to claimants that entering into a standstill agreement will not be considered a good reason for delay or as being sufficient to protect their position.

This is a general summary of the law as at the date of this article. It should not replace legal advice tailored to your specific circumstances. If you wish to discuss the implications of this matter further please contact us on 020 7224 0025 or by email at info@millschody.com.

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