31 July 2019

Court of Appeal allows out of time Inheritance Act claim

The eagerly awaited Court of Appeal judgment in Cowan v Foreman [2019] EWCA Civ 1336 was handed down on 30 July 2019, confirming that Mrs Cowan can make a claim out of time, for reasonable provision from her husband’s estate. 

The deadline for making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is usually six months from the date of the Grant of Representation, although the Court can permit applications to be made out of time.  In this case, the parties were engaging in pre-action correspondence and had agreed to extend the deadline.  The first instance judge was willing to ignore the parties’ own agreement to extend the time, and refused Mrs Cowan permission to bring her claim. 

It will be a relief for potential claimants to know that the Court of Appeal has overturned this decision, noting in particular: that the time limit is intended to protect personal representatives from the consequences of distributing an estate which later becomes subject to a 1975 Act claim (and not to protect beneficiaries from “stale claims” as had been suggested by Mostyn J at first instance); that negotiations are to be encouraged; and that even where generous provision is made by way of a trust, “reasonable” financial provision may require payment of a capital sum in order to provide appropriate security to the claimant.  The Court of Appeal disagreed that to allow this claim would amount to forced spousal heirship, as each case always depends on their own facts and the specific application of the factors set out in the Act.

This latest judgment in Cowan removes the previous discrepancy between it and last year’s case of Bhustate v Patel [2018] EWHC 2362 (Ch), where a widow was given permission to bring a 1975 Act claim nearly 27 years after the deadline. It confirms that a delay need not be fatal, especially if the delay is relatively short, there is an arguable case, time has been used for correspondence or negotiation, and the estate has not been distributed.

 

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