Analysis
Iranian born Mrs Theodore (the testatrix) died domiciled in England on 18 February 2009. She left a will dated 29 October 2002 which distributed her £573,000 estate primarily between her adult niece and son (the first and fourth defendants). She also left a legacy of £50,000 to her then 51- year-old daughter (Ms Zarrinkhat).
Ms Zarrinkhat did not consider that reasonable financial provision for her maintenance had been made under the will and sought to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act). However she attempted to do so nearly 18 months after the Grant of Probate had issued. Ms Zarrinkhat, a linguistics graduate, lived in Germany and had done so most of her life. Although she was capable of communicating in English, she did not consider herself to be fluent and required the services of an interpreter at the hearing. Her purported lack of English language ability was key support for her application for permission to bring her claim late as this language barrier required her to find a German-speaking solicitor in England to represent her. This was allegedly a time consuming process.
In addition, despite Ms Zarrinkhat having spoken to a number of solicitors in England, and having given formal instructions to two prior to the expiration of the claim widow, Ms Zarrinkhat told the court that she had not been advised that she could bring a claim until it was too late to do so.
Ms Zarrinkhat’s evidence in support of the time extension and her claim was set out in six witness statements in which she stated that she was a divorcee mother who was unable to work more than 20 hours per week due to a medical condition. Furthermore she had limited income, which her outgoings exceeded and she owed significant debts. Very little documentary support was provided. Master Marsh noted that, over time, her evidence appeared to become more and more tailored to fit her claim.
The testatrix’s son and niece also had limited earning potential and whilst the son had some capital wealth (primarily due to a lifetime gift of a property by the testatrix), the niece was relying on the goodwill of her then partner for the financial support of herself and one of her two sons. Their relationships with the testatrix were much closer than that of the testatrix and her daughter.
Held:
- (1) The court has an unfettered discretion to allow claims under the Act to be broughtout of time and in exercising that discretion the court will consider the factors set out in Re Salmon [1981] Ch 167. The onus to show sufficient grounds for extension is on Ms Zarrinkhat.
- (2) It is impossible to separate out the application for a time extension from the merits of a claim as the strength of a claim is a relevant factor in determining a time extension.
- (3) Ms Zarrinkhat, although not cross-examined on the point, demonstrated through discussions with the judge and others that her English language ability was more than adequate to understand her rights and to bring a claim within the statutory time frame. If she was not advised appropriately by her legal adviser then she should seek recourse through them.
- (4) Given Ms Zarrinkhat’s witness statement evidence and her unacceptable lack of documentary support for her personal debts, income, outgoings and medical condition her claim would be a weak claim. The evidence of the testatrix’s son and niece was preferred. No further financial provision would be made if the claim was permitted to be brought.
- The application for an extension of time is refused and the application dismissed.
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