Delay in Bringing Inheritance Act Applications

If a will (or intestacy) does not make 'reasonable financial provision' for a spouse, partner, child, or other dependent it is open to them to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975. A Judge will then consider their needs and resources and decide what would be reasonable for their maintenance based upon a number of factors which must be taken into account. The purpose of the Act is to help those left with insufficient money by somebody who they were dependent upon.

There can however be a problem. An application for reasonable financial provision under the Act must be brought within six months from the date on which a Grant to the estate is first taken out. This is S4 of the Act. The court can however extend this period and grant leave to bring a claim after the six-month time limit. This article considers when such permission is likely to be given.

A number of guidelines have been given by the judges in decided cases. However be warned. It has been said that the discretion to extend the time limit will be used sparingly. The reason for this is that it would be unfair for the beneficiaries named in the will (or intestacy) to be left in limbo for any extended length of time.

These are the guidelines which have evolved:

�It is for the applicant to show sufficient grounds to extend the time limit and deprive those with its benefit; � how promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired; �Whether negotiations were carried out during the time limit � Whether or not the estate has been distributed before a claim has been made or notified; �Whether the court is satisfied that the applicant has an arguable case that he is entitled to financial provision from the estate. � Whether a refusal to extend the time would leave the claimant without redress against anybody, for example their solicitor.

Very often the failure to issue a claim within six months of the Grant will be simply down to mistake or ignorance. Of this it has been said by one eminent judge: �That any blunder of that sort should completely and finally deprive a litigant of recourse to the court would challenge the foundations of natural justice.�

What can be another danger is making the application too early. Applications should not be made before the grant of representation is taken out. The application can be made but a practical difficulty could be ascertaining who the personal representatives are or might be. Assuming they can be identified the application could still be struck out as being premature. It is best to wait for the Grant by issuing a standing search at the Probate Registry.

An application to extend the time limit will normally be made in conjunction with the application for financial provision. The supporting affidavit in support should give full details of the reason for the delay and set out why it is in the interest of justice for leave to be given and why, if leave is granted, the beneficiaries will not be prejudiced. It should also include and deal with all the guidelines above.

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