13 March 2019

Court U-turn in approach to “out of time” Inheritance Act claims

Shortly after Mr Justice Mostyn rejected an application to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("IPFDA") outside the statutory six month time-limit (in Cowan v Foreman and ors [2019] EWHC 349), the Court last week allowed a claim to be brought under the IPFDA some 25 years and nine months after the deadline for doing so.

The claimant's husband in Bhusate –v- Patel [2019] EWHC 470 (Ch) died intestate in 1990. As his estate had not been properly administered, the property in which he and the claimant had lived (which constituted the bulk of his estate) had remained registered in his name. The Court had previously struck out the claimant's claims to a beneficial interest in the property and a statutory legacy (Re Kashinath Bhusate (deceased) [2018] 2362 (Ch)), and so her only recourse was to bring a claim under the IPFDA for financial provision from her late husband's estate. As over 25 years had passed since the statutory deadline for bringing a claim under the IPFDA, the claimant was required to apply to Court under s. 4 of the IPFDA for permission.

Chief Master Marsh exercised his discretion in favour of the claimant. His judgment factored in (i) the strong merits of her claim; (ii) her limited culpability (as one of the administrators) in failing to administer the estate for over 26 years; (iii) the actions of her late husband's children by his first wife being the reason why she had a claim under the IPFDA (subject to the s. 4 application succeeding) and; (iv) the fact that refusing the application would leave the claimant with no benefit from the estate and effectively homeless.

This decision is clearly very difficult to reconcile with Mostyn J's judgment (commented on by Emily Exton and Ashleigh Carr on 28 February 2019) and is therefore likely to increase uncertainty for practitioners. The Court's discretion in relation to s. 4 applications is very wide, and since there does not appear to be a consensus among the judiciary, the outcome of these applications will be difficult to predict. However, this uncertainty and unpredictability are perhaps by-products of a deliberately flexible regime which allows judges to consider the multiplicity of unique circumstances and hopefully strike the right balance between allowing claimants to be heard and refusing stale claims.

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