I found this advice
This is a question which has come before the court on a number of occasions in recent years and most recently in the case of Kaur v Bolina which came before the High Court late last year. In that case, the court allowed the claim to proceed five months after the statutory deadline had passed and, in doing so, provided some useful guidance on the factors which will be taken into account in this type of case.
So, what is the deadline to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
The 1975 Act provides that a claim for reasonable financial provision must be made within six months of the date the grant of representation is issued by the Probate Registry. However, the Act also provides that the court may grant permission for a claim to proceed after the end of the six-month period.
What were the facts?
In Kaur v Bolina, the claim was made by the wife of Mr Bolina, who died in September 2019. Mr Bolina’s last Will left his entire estate, valued at between £300,000 and £350,000, to his two adult children and made no provision whatsoever for the claimant. The two children were also named as the executors of Mr Bolina’s estate; they distributed the estate to themselves in August 2020.
Mr Bolina and the claimant were married for seven years but had a turbulent relationship and by the time Mr Bolina died they had separated and the claimant had left the matrimonial home. Mr Bolina’s Will was prepared in 2014 at the same time as he had made his first petition for a divorce from the claimant; they subsequently reconciled but a second petition was made by Mr Bolina in 2018.
The claimant maintained that she did not learn of Mr Bolina’s death until December 2019, some three months after the event, when a court hearing took place to address outstanding matters in their divorce. It was the adult children’s position that the claimant was aware of her husband’s death much earlier, in October 2019. In any event, probate of Mr Bolina’s estate was granted to his children in December 2019. In May 2020, the claimant applied to the Probate Registry to register a caveat against the estate and was informed by the Probate Registry that she would be informed if a grant was issued; she was not told that a grant had, in fact, been taken out six months earlier.
Also in May 2020, the claimant wrote to Mr Bolina’s children indicating that she intended to bring a claim under the 1975 Act and inviting them to participate in alternative dispute resolution. The children maintained that they had responded to the claimant’s letter and told her about the grant, although the claimant denied ever having received their correspondence. The six-month period expired in June 2020 and in July 2020, the claimant instructed solicitors to write to the children setting out her claim under the 1975 Act; the children denied receiving this letter. In November 2020, the claimant’s caveat expired and she was informed of the existence of the grant. A claim under the 1975 Act was issued on her behalf promptly thereafter, five months after the expiry of the six-month period.
How did the court exercise its discretion?
The judge drew heavily on previous case law to reach his decision and, in particular, he referred to the 2019 case of Cowan v Foreman, which attracted much discussion within the legal world, and which emphasised that the purpose of the court’s discretion is to allow claims to be made out of time when it is “just to do so”. In other words, in order to obtain permission to bring a late claim, a claimant must show that they have a “substantial case” and the court must consider all the circumstances of the case:
- Did the claimant act promptly to bring the case?
- Were negotiations started within the six-month time limit?
- Was the estate distributed before the defendants were notified of the claim?
- Would the claimant have recourse to any other remedy if the 1975 Act claim was not able to proceed?
In this case, the judge ruled that the claimant’s claim should be allowed to proceed out of time for the following reasons:
- The claimant had an arguable case. In other words, her claim for financial provision under the 1975 Act was meritorious given the length of her marriage to Mr Bolina and her own financial circumstances.
- The children were on notice of the claim since May 2020, within the six-month period.
- The claimant acted promptly once she learned of the existence of the grant.
- The distribution of the estate was not complex and had been made by the children to themselves after they were told of the potential claim.
What can we learn from this case?
Although the claimant was successful in obtaining permission from the court to bring her claim out of time, this is a stark reminder that administrative errors can lead to costly and lengthy litigation. Had the claimant entered a standing search when she first learned of Mr Bolina’s death, she would have been notified that the grant had been issued and her claim could have been issued within the six-month window, avoiding an expensive preliminary hearing.
Ultimately, this case was decided on its facts and it demonstrates that the court will carry out a balancing exercise, weighing up the different factors set out above to decide whether allowing the claim to proceed is fair. There is no guarantee that the outcome will be the same on every occasion and so potential claimants under the 1975 Act should seek prompt and early advice to avoid losing their chance to bring a claim.
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Contentious Trusts and Probate Team can help… even if you have missed the six-month deadline.