If one ever needed proof that certain types of legal cases turn entirely on their facts, the case of Bhusate v Patel and others  EWHC 470 (Ch) fits the bill perfectly. In early March 2019, Chief Master Marsh allowed an applicant to proceed with a claim under the Inheritance (Provision for Family & Dependants) Act 1975 (the Act) despite the claim being made almost 26 years out of time.
In February, Mr Justice Mostyn in Cowan v Foreman and others  EWHC 349 (Fam) refused to allow an application under the Act to proceed despite it being a mere 17 months out of time.
An examination of these two cases illustrates the importance of the facts when it comes to out of time applications, in cases involving inheritance claims. However, before we look at the cases, let’s set out what the Act governs.
The Inheritance (Provision for Family & Dependants) Act 1975
The Act allows a person who has been left out of a Will or intestacy, or who has not received the inheritance they expected to challenge the Will or how the deceased Estate was distributed according to the Rules of Intestacy.
To make a claim under the Act, the deceased must have been domiciled (i.e. residing or based) in England or Wales. The following are entitled to make a claim:
- The spouse or civil partner of the deceased
- A divorced spouse or civil partner of the deceased, if you have not married or entered into a civil partnership with someone else
- A cohabitee of the deceased who lived with them for at least two years before they died
- A child of the deceased (including children over 18)
- An adopted or fostered child or step child
- A person who the deceased acted as a carer for prior to the deceased’s death
Under the Act, the Court has the power to make a variety of orders if they are satisfied the deceased failed to make ‘reasonable financial provision’ for the Claimant. These can include the transfer of property and/or the ordering of a lump sum or periodic payments. In cases where your financial situation is dire, the Court can order interim payments.
Section 4 of the Act states a claim must be brought within six months of the Grant of Probate (or Letters of Administration); however, as we shall see, the Court has a wide discretion to allow a claim to proceed out of time.
Even quarter of a century out of time.
Out-of-time claim refused – Cowan v Foreman and others
The Claimant’s late husband died in April 2016, leaving an Estate worth just under £16 million. Probate was granted on 16 December 2016. The Claimant aged 77 at the time of the case, and her husband had been living together since 1994 but had only married shortly before he passed away. The husband’s Will did not make a straightforward provision for the Claimant, instead, she was made the principal beneficiary under a Trust which paid her a monthly payment.
A claim form under the Act was issued on 8 November 2018, 17 months after Probate was granted. As a result of a standstill agreement between the parties, it was held that in reality, the delay amounted to only 13 months. A standstill agreement is a tool used in claims under the Act to deal with the short six-month time frame. It is common for parties who have a potential claim under the Act to negotiate a ‘standstill period’ which stops the clock for six months so Solicitors can adequately prepare the claim and to provide an opportunity for the matter to be resolved outside of Court.
Mr Justice Mostyn, however, was not impressed by the standstill agreement:
“I was told that to agree a standstill agreement 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 the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock a snook at the clear Parliamentary intention.”
The judge then went on to state that the following must be satisfied for the Court to approve an application for an out-of-time claim:
- there is a good reason for the delay; and
- the claim has sufficient merit to be allowed to proceed to trial.
It was held there was no justification in this case for the delay and any time lapse with regards to making an application out of time should be measured in weeks, or at worst, a few months.
Enter Chief Master Marsh and Mrs Bhusate.
Out-of-time claim allowed – Bhusate v Patel and others
The Claimant, Mrs Bhusate was the third wife of her deceased husband. Mr Bhusate had died intestate in 1990 and Letters of Administration were obtained in 1991. The Claimant was much younger than her husband, spoke little English and her education was limited. The Defendants were Mr Bhusate’s five adult children. Relations between Mrs Bhusate and her step-children were difficult.
Under the Rules of Intestacy, Mrs Bhusate had been entitled to a £75,000 statutory legacy, a half share of the residuary estate on trust for her absolutely, and a life interest in a half share of the residuary estate. The Estate’s primary asset was a house with a value that had risen from £135,000 in 1990 to around £850,000 in 2019. For the Claimant to receive her share, the property had to be put on the market.
There was an attempt to sell the house in 1990, but there was little interest in the property. It was taken off the market in 1994, due to the fact a price acceptable to the step-children could not be obtained. No other steps were taken by any of the parties to administer the Estate.
In November 2017, Mrs Bhusate brought various claims, including permission to bring a claim under the Act, but out of time.
She was successful.
The Chief Master stated that all but one of the step-children were “implacably” hostile to the Claimant. He also stated that, in the absence of co-operation or engagement from her step-children, Mrs Bhusate was “effectively powerless” to take action sooner.
“They have stood by until a claim was made and then taken a limitation point so as to deprive the claimant of her entitlement from the estate” stated the Master.
It was also pointed out that if permission was not granted, the Claimant would be made homeless as a claim under the Act was the only recourse available to her.
Other elements which the Chief Master held had an important bearing on the application included:
- With her limited knowledge of English, Mrs Bhusate could not have been able to read Solicitor’s letters without the help of a Solicitor, and she would not have understood her duties as an Administrator, the complexity of the law of intestacy or the statutory legacy.
- Mrs Bhusate’s husband took care of all business matters and on a cultural level she was in no position to deal with them.
- The Claimant was profoundly affected by the death of her husband and had surgery shortly after he passed away. In addition, she was left in sole charge of a nine-year-old and had very little money.
- The family dynamic was toxic and two of the step-children took strong positions against the Claimant.
Ultimately, it was held that it was unrealistic to think the Claimant could have imposed her will on the Defendants, especially against the two most hostile to her, by applying to the Court for directions.
After granting the application, Chief Master Marsh referred to the decision in Cowan and stated that he did not think it was right to have regard to the overriding objective of the Act when exercising discretion under Section 4. He stated, “‘To do so, I suggest, involves conflating issues that, if they are related, are at best distant cousins.”
So where does this leave those who wish to make a claim under the Act? The position is far from clear. But it is undoubtedly preferable to make an application within the six-month time period set down in legislation. Until there is a further ruling on this issue from a higher court, trying to bring a claim out-of-time runs a considerable risk of the application being refused.
Saracens Solicitors is a multi-service law firm based in London. We have dedicated and highly experienced civil litigation solicitors who can advise you on contentious Wills and probate matters. For more information, please call our office on 020 3588 3500.
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