- March 29, 2019
- By Clare Kelly
- 0 comments
How long do I have to make a claim under the Inheritance Act?
If you believe that you might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you have to act fast. You have 6 months from the date of a Grant of Representation (Probate or Letters of Administration) to submit your claim to the court.
If you are aware that the deadline is approaching, but you are negotiating with the other side then you may not want to start proceedings. It can be expensive (because you have to submit a detailed witness statement and all of your evidence when you start the claim). Writing, and then the other side reading, a detailed witness statement can also bring up strong emotions for the parties which may not be conducive to settlement.
One way around this has been to enter into a Standstill Agreement – an agreement with the other side that there will be an extension to the limitation period for a set period of time. (Technically speaking, it is only the Court which can grant permission to proceed with the clam outside the time limit but the parties can agree not to raise the issue against each other (in which case it is highly unlikely that the Court will refuse an extension). This prevents anyone from having to incur the costs of issuing proceedings, and means that the parties can (hopefully) reach a settlement.
However, there is currently some doubt about the effectiveness of these agreements since Mostyn J’s judgment in Cowan v Foreman  EWHC Fam in which he stated that “I was told that to agree a stand-still agreement of this nature is “common practice”. If it is indeed common practice, then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court. If the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued.”
I understand that his decision is to be appealed, but whether that will mean that Standstill Agreements regain popularity remains to be seen. My advice at this time is that it is more sensible to issue proceedings and get an extension of time to serve rather than risk a Standstill Agreement.
If you miss the deadline, it is possible to make an application under s4 of the Inheritance Act to proceed out of time. The criteria which the Court will take into account are set out in the case of Re Salmon (1981). The Court will consider:
– The length of the delay and the reasons;
– Whether negotiations were begun within the time limit;
– Whether the estate has been distributed;
– Whether the Claimant has a remedy against anyone else (for example a professional negligence claim against their solicitors);
– Whether the Claimant has a good claim.
I have written elsewhere about the case of Bhusate v Bhusate which allowed a case to proceed over 25 years out of time. That case is the exception and not the rule – in most cases, a delay of more than a few months will not be given permission (there are a handful of cases where there are delays of several years but very few).
My advice is to issue as soon as possible – within the limitation period if you can and, if you cannot, as soon afterwards as possible. If you need permission to proceed, then that application should be made without any delay. If you need more advice, please don’t hesitate to contact me.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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