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A claim under the Inheritance (Provision for Family and Dependants) Act 1975 ('the 1975 Act') must be made within six months from the date on which a Grant of Representation was issued unless permission of the Court for late service is granted. This is a tight deadline and quite often an applicant might not even be aware of the deceased’s passing, let alone the date the Grant, until months or perhaps years after it has expired.
So what can the applicant do, especially when missing the deadline was no fault of their own?
The Court has power to grant permission for an application to proceed even if it is made out of time. But any application is fact specific and is inevitably subject to close scrutiny. The Court does not want to encourage dilatory conduct by waving through late applications unless there’s good reason to do so. The Court also wants to provide the beneficiaries and personal representatives with a degree of certainty a claim cannot be casually commenced years after the deceased’s passing.
In Re Salmon (Deceased)  the Court laid down the following principles that should be addressed in late applications under the 1975 Act:
How promptly and in what circumstances the applicant has sought permission after the time limit has expired is highly relevant;
Whether or not negotiations have been commenced before the deadline expired;
Whether or not the Estate has been distributed before the 1975 Act claim had been made or notified;
Whether a refusal to extend the time would leave the claimant without redress against any third party (normally their solicitor!).
A further and important consideration for the court is whether the applicant can demonstrate they have an arguable case for financial provision from the Estate. There’s little point in addressing an application to proceed out of time if the underlying merits of the claim are relatively weak. But if an applicant can positively satisfy the Court on all these points, permission to proceed is more likely.
In re C , a claim was made 18 months after the Grant on behalf of an 8 year old child as a result of the mother’s failure to take action. As the Estate was large and the merits of the claim were good, the Court decided to allow the application as it would have been an injustice to the child.
In McNulty v McNulty  the application was almost four years late but was allowed to proceed because the applicant, when she became aware of the true value of the substantial Estate which had yet to be distributed, acted promptly and the merits of her claim were strong.
This should be contrasted with Berger v Berger . This was a claim by a widow against her husband’s substantial Estate but it was six years late. The merit of her claim was justified but the delay was not and permission to proceed was refused.
Also, since the introduction of the Inheritance and Trustees Powers Act 2014 it is now possible to commence a claim before the Grant is issued. Beforehand, a claim could not be commenced until the Grant was issued which led some personal representatives to hold off applying for it.
Finally, as prevention is always better than cure, how can a potential applicant know when the Grant is issued? The simplest method is to set up a standing search at the Probate Registry which will alert the applicant when the Grant has been issued so that action can be diarised.
For more information, please contact Noel McNicholas on 01455 620805.