Analysis
The claimant, who was born in the Philippines, married Michael Frederick Hendry (the deceased) on 31 October 2003. He was 20 years older and already had three adult children. They entered into a pre-nuptial agreement which provided that in the event of the marriage failing the claimant would receive a lump sum of £10,000 and a one-way flight to the Philippines. In the event, they separated on 24 June 2016. The deceased made a will on 6 August 2016 dividing his residuary estate equally between the first and second defendants and appointing the third defendant as executor. The claimant petitioned for divorce on 7 November 2016 but the deceased died before a hearing on 14 February 2017. The claimant was advised on 5 April 2017 that any claim for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975 (1975 Act) had to be made within six months of the personal representatives obtaining a grant of probate. Her solicitors were therefore aware that the application had to be made within that period and, although there was no challenge to the validity of the will, they lodged a caveat and were invited by the third defendant to submit a formal letter of claim from the claimant. Her solicitors failed to do so, despite being chased for such a letter of claim. On 10 August 2017 a schedule of assets and liabilities in the estate were provided to the claimant’s solicitors who merely advised the personal representatives that the claimant thought she was entitled to half of the estate in accordance with what was described as the divorce rule. The claimant’s solicitors withdrew the caveat on 18 August 2017 and this enabled probate to be granted to the third defendant on 29 August 2017. Negotiations in the technical sense took place between the legal representatives on behalf of the parties although at no stage were they based on a considered analysis of a claim against the estate. The claimant would not move from a 50/50 split despite a final offer of a three way split by the first and second defendants. That offer was rejected on 1 February 2018 and the time limit to bring a claim under the 1975 Act expired on 1 March 2018. The claimant issued a Part 8 claim form on 27 April 2018 seeking permission under s4 of the 1975 Act.
Held (dismissing the claim):
The claimant bore the burden of showing sufficient grounds for the court to grant her permission to bring a claim out of time under the 1975 Act. There was a paucity of evidence in the claimant’s first and second witness statements as to how promptly she had acted and the circumstances that had given rise to the application out of time. Despite objections, the hearing was adjourned to enable the claimant to file and serve a further statement dealing with her failure promptly to apply for permission. Her solicitor filed a statement on her behalf and frankly admitted that it was not until 23 March 2018 that they appreciated negotiations were at an end and that a claim would have to be out of time. Even after that opportunity to file further evidence, there was a failure to explain why there had been a delay and why the claimant’s solicitors had not kept the first and second defendants’ solicitors informed. The time limit was a substantive; not procedural, provision laid down in the 1975 Act and a submission that the delay had caused no prejudice to the beneficiaries was rejected. Whilst the estate had yet to be administered, it was only modest and the beneficiaries had suffered financially by being kept out of their inheritance. Whilst the claim was not unarguable and weight had to be given to the pre-nuptial agreement, the evidence failed to demonstrate that she had acted promptly or explained the circumstances for the delay, the negotiations were not based on a considered analysis of the claim and were therefore inadequate and a refusal of permission would not leave her without recourse to other remedies, in particular a potential claim against her solicitors for professional negligence. Accordingly, permission was refused to bring a claim under the 1975 Act.
JUDGMENT SHUMAN M: [1] The claimant brings a claim for an order under s2 of the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) for reasonable financial provision from the estate of Michael Frederick Hendry (the deceased). She was married to the deceased albeit they separated in June 2016. No provision was made for the claimant …Continue reading "Hendry v Hendry & ors [2020] WTLR 175"