Analysis
The claimant applied for an order under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), s2, against the estate of her deceased husband (the deceased). Probate of the deceased’s will was granted on 16 December 2016 and the application was made on 8 November 2018. Under s4 of the 1975 Act, except with the permission of the court any application for an order under s2 was to be made within six months of the date of the grant. This was an application for permission to make the substantive application out of time, the application having been made nearly 17 months after the grant of probate of the deceased’s will.
The claimant and the deceased met and began their relationship in 1991 and were married on 8 February 2016, after the deceased was diagnosed with a brain tumour. The deceased made a will on 24 March 2016 and died on 9 April 2016, aged 78, leaving an estate of a little under £16m. He left the bulk of his estate on discretionary trusts, of which the claimant was a beneficiary, with a revocable life interest of part of the trust funds in favour of the claimant and a power to advance capital to her. In a letter of wishes the deceased expressed the wish that the claimant should be the principal beneficiary of the trust funds.
Circumstances
A few days after the grant, the executors’ solicitors sent the claimant an exhaustive exposition of the structure of the will. The claimant took advice and was told that the time limit for an application under the 1975 Act was six months. On 25 January 2018 – some seven months out of time – the executors’ solicitor wrote that they would not take a point on the six-month deadline having passed pending receipt of a letter of claim (the standstill agreement). The letter of claim was served on 1 May 2018, but the claim form was not issued until 8 November 2018.
Held
The application for permission to apply out of time was refused.
The principles to be followed on an application under s4 of the 1975 Act were set out in Berger v Berger [2013] EWCA (Civ) 1305. The court had to be satisfied that the claimant had shown good reasons justifying the delay and that she had a claim of sufficient merit to be allowed to proceed to trial. Although previous authority (Re Salmon [1981] Ch 167 and Re Dennis [1981] 2 All ER 140) had referred to the decision in terms of the exercise of a discretion, which was unfettered and subjective, this was not the case: it was the making of a qualitative decision or a value judgement, based on an evaluation of a number of different factors. The limits of delay in the modern era of civil litigation should, absent highly exceptional factors, be measured in weeks or, at most, a few months. In this case, there were no good reasons to justify the delay for over 13 months, ignoring the period relating to the standstill agreement. This was the case whether the decision was made by forming a value judgement or qualitative decision, or by the exercise of a discretion.
Per incuriam: Although standstill agreements were common practice for claims under the 1975 Act, that practice should come to an end. It was not for the parties to give away time that belonged to the court. Instead of such agreements, the claim should be issued in time and the court invited to stay the proceedings.
JUDGMENT MOSTYN J: [1] This is my judgment on the application by the claimant under s4 of the Inheritance (Provision for Family and Dependants) Act 1975 for permission to make a substantive application under s2 of that Act against the estate of her deceased husband Michael Anthony Cowan. [2] Section 4 provides: ‘An application for …Continue reading "Cowan v Foreman & ors [2019] WTLR 441"