Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 (“Inheritance Act”) gives the Court the power to order financial provision from the deceased’s net estate for certain categories of applicants.

The Claimant must bring their claim before the end of the period of 6 months from the date of the first Grant of Representation (Inheritance Act s.4).

What if you have missed the deadline to make a claim? Is this fatal? Is this the end of your claim?

In the recent case of Begum v Ahmed (Personal Representative of the Estate of Mohammed Yosaf Khan, deceased) [2019] the Court of Appeal summarised the approach to be taken in considering applications to extend time to bring a claim for  reasonable financial provision pursuant to the Inheritance Act.

In this case the Appellant appealed against the refusal by the lower Court to allow her to bring a claim 8 months out of time.

The deceased made a Will in 2004 appointing his daughter, Ms Ahmad, as his Personal Representative and left his entire estate to her.  Probate was granted in April 2016 and the six month time limit for the Claimant, Mrs Begum, to bring her claim expired in October 2016.  The only asset in the estate was the house where Mrs Begum, the deceased’s wife, had lived since 1993.  Mrs Begum was aged 60 and disabled.

In June 2016 Ms Ahmad demanded possession of the house.  That month Mrs Begum’s solicitors wrote back referring to her entitlement to financial provision under the Inheritance Act and to a challenge to the validity of the Will on the basis of lack of testamentary capacity. 

Mrs Begum was unrepresented between July and December 2016. 

Ms Ahmed issued possession proceedings in November 2016 and in April 2017 Mrs Begum served a defence alleging the Will’s invalidity but did not refer to a claim under the Inheritance Act. 

In February 2018 Mrs Begum brought a claim under the Inheritance Act and sought permission to bring it out of time.  The Judge in the first instance held that there was no reasonable explanation for the delay in bringing the claim out of time and refused permission. 

Mrs Begum appealed to the Court of Appeal who held that the lower Court’s decision to refuse to extend time was flawed.  The Court of Appeal said that it was relevant to consider any clear prejudice to the party seeking the extension if leave was withheld and the prejudice to the other party if leave was granted. It is material to ask whether bringing the claim out of time would cause delay in the proper administration of the estate or have the potential to interfere with distributions which had already been made.  Here, as the property was the sole asset of the estate and could not be sold with a defended possession claim in place, there was no real prejudice caused to the administration of the estate by Mrs Begum’s claim being brought out of time.

Further, there had been a lengthy delay and whilst the judge was bound to take into account the absence of a good explanation for all the delay, the judge had failed to analyse the effect of the delay.  The Judge had been wrong to discount completely the fact that Mrs Begum was losing her home of more than 25 years on the basis that the property would have been sold had it not been for her actions.

The judge found that refusing permission would defeat a strong claim under the Inheritance Act for Mrs Begum to retain her home and that it would be just and proper to extend time.

This case shows that whilst a short delay is not fatal, it is arguable that the time should be used for good purpose such as correspondence and negotiation between the parties. The application will also have a higher chance of success if the estate has not been distributed. Given the uncertainty of the Courts granting an extension of time to make a claim, it is ultimately best to lodge a claim promptly within the time period of 6 months from the date of Grant of Representation.

To find out more please call Nasima Ansary on 020 82590 7326 or email nansary@judge-priestley.co.uk to discuss your situation.