Since 1975, disappointed beneficiaries have been able to claim for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act (“the Act”) subject to a six months time limit following the granting of probate.
The Act, however, provides the Court with a discretion to permit claims lodged well after the six months time limit has expired.
It might have been thought that the previous record of six years was approaching the limit of what a Court would be prepared to countenance, however, we should never underestimate the power of tenacity, and in March last year Mrs. Bhusate was given leave to bring a claim against her late husband’s estate more than 25 years out of time.
The Act is silent on how the court ought to exercise its discretion, however, case law has developed over time to identify a number of relevant factors, including the following:-
- The court’s discretion must be exercised in accordance with what is right and proper.
- Whether negotiations began within the time limit
- Whether dismissal of the claim would leave the Applicant without recourse to other remedies
- Whether there was a trigger for the late claim now being issued out of time
- The conduct of the parties
- Whether the assets of the estate have been distributed
In the Bhusate case the parties had married in India in 1979 when Mr. Bhusate, for whom it was his third marriage, was 61 and Mrs. Bhusate was 28.
They returned to the UK where Mr. Bhusate died ten years later without leaving a Will, at which point Mrs. Bhusate, who had left school illiterate at the age of 11, still spoke only very broken English. As well as his widow, Mr. Bhusate also left behind five children from his first marriage and one child by the claimant.
Although Mrs. Bhusate had a clearly defined entitlement under the intestacy provisions, the administrators failed over the years to administer the estate.
Following unsuccessful legal action Mrs. Bhusate was left with no inheritance from her late husband’s estate and no interest in the matrimonial home and as a result she brought the claim under the 1975 Act notwithstanding that it was a quarter of a century out of time.
The judge was careful to state that the grounds would be highly fact sensitive varying widely from case to case and would require to be all the more compelling the longer the delay in bringing the case before going on to permit the application for the following reasons:-
- The merits were strong
- The imbalance between Mrs. Bhusate and her step children who were well educated and comfortably off left her in effect powerless to do anything without the latter’s engagement
- The step children had obstructed earlier attempts to take action
- If permission were not granted Mrs. Bhusate would be left homeless with no benefit from her late husband’s estate
This judgement is regarded in some quarters as unduly lenient and once again demonstrates the difficulty in predicting the outcome of cases brought under the 1975 Act.
The lesson to be learnt, however, is that disappointed beneficiaries should not be backward at coming forward.
If you believe that you may have a claim under the Act please contact our David Maxwell on firstname.lastname@example.org