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Ticking Clocks in 1975 Act Claims

A photo of Matthew Button
17th February 2023

Any applicant under Inheritance (Provision for Family & Dependants) Act 1975 must commence their claim within the 6 month window from the date probate was granted unless the Court orders otherwise. That’s a simple rule to follow but it still catches applicants out.

In exceptional circumstances section 4 of the 1975 Act allows applicants an extension of time as illustrated in Colbourne v Cooke and Others [2022].


Ms Colbourne applied to bring a 1975 Act claim out of time. In this case, the deadline for bringing the claim would have been 22 March 2022 but an application was not submitted until 13 May 2022. Ms Colbourne (or more likely her worried solicitors) cited a technological malfunction in the case management system as the reason for the delay. This meant the section 4 deadline was either not successfully registered on the system or was inadvertently removed when the case management system was restored overnight.

Ms Colbourne was the only child of the deceased and the mother of the deceased’s only grandchild. The deceased’s last Will left her nothing apart from a couple of items of jewellery and her son a modest £5,000 legacy. Ms Colbourne owned no property of her own and would use her modest income to meet the day to day costs of living. She had no savings and had no mortgage capacity due to her poor credit rating. She had been arranging her finances on the basis that she would inherit her parents’ Estates following numerous assurances made to her by her parents. On that basis, it would appear she had a more than viable 1975 Act claim.

Interpreting Section 4

Section 4 doesn’t provide any practical guidance as to how the court should approach an out-of-time application, but the court referred to the following factors set out in Re Salmon [1981] in determining how the provision should be applied:

  • How promptly and in what circumstances the applicant sought an extension of time;
  • Whether negotiations commenced within the time limit;
  • Whether the Estate had been distributed before a claim (or application for an extension of time) was made or notified; and
  • Whether a refusal to extend time would leave the applicant without redress.

It was also agreed by the parties the court should consider the seven key considerations set out by the Court of Appeal in Berger v Berger [2013] – an unsuccessful application for relief but perhaps not surprising given the delay was over six years. Applying these considerations to Ms Colbourne’s application, the court found:

  • The circumstances of this claim did warrant consideration of the evidence;
  • The burden of proof was on Ms Colbourne to explain the delay; she had provided a witness statement from her solicitor setting out his explanation for the error which led to the necessity of this application. She had also provided her own witness statement setting out the underlying merits of the claim;
  • Missing the deadline was not Ms Colbourne’s fault;
  • The parties had been engaged in pre-action negotiations. As soon as Ms Colbourne became aware of the expiry of the limitation period, an attempt at agreement with the Respondent was made before her application was filed. The court therefore found that the application had been made promptly;
  • The Estate had not yet been distributed;
  • Regarding recourse to other remedies, the court considered that Ms Colbourne had a prospective negligence claim against her solicitors, but this was not a counterbalance against other important factors;
  • Purely in the context of the application - and without determining the actual merits of the claim having regard to Ms Colbourne’s financial position and other matters set out in her witness statement - the court was satisfied that she had an arguable case.

In light of these considerations, the court was satisfied that permission could be granted to Ms Colbourne to continue with her 1975 Act claim. Which must have been something of a relief to her solicitors.

Future claims

Those looking to make a claim under the 1975 Act should ensure action is taken within the requisite 6-month period unless the circumstances prove this to be impossible.

It may be possible as an alternative to agree a standstill agreement with the other side to allow the parties to negotiate but if there is any possibility of missing the 6-month deadline in the absence of a standstill agreement, the issuing of the claim must be a priority which can then be withheld from service for an additional 4 months to allow the parties to explore a resolution.

If an applicant finds out long after the limitation date under section 4 has expired, does that mean the 1975 claim has finished too? No, not necessarily. We have successfully pursued 1975 Act claims where the applicant took prompt action once they had found out about the deceased’s death. But each case is different and that is the essence of all 1975 Act claims.

If you would like to find out more about the contentious probate services we provide, please contact our team based in Leamington Spa.