The Inheritance Act (or the Inheritance (Provision for Family and Dependents) Act 1975, to give it its full title) was passed to help spouses, children, civil partners, cohabitees and other surviving dependents who have been left to cope without sufficient money to enable them to manage. If a will (or intestacy) fails to make ‘reasonable financial provision’, then an application to the court can be made, and a judge will consider the applicant’s needs and resources against what would be reasonable for their maintenance, based upon a range of factors that have to be taken into account.
An application for reasonable financial provision under the Act must be brought within six months from the date on which a grant to the estate is first taken out. The court can, however, extend this period and grant leave to bring a claim after the six-month time limit.
A number of guidelines have been given by the courts as to when the discretion to extend the time limit will be used. It will be used sparingly, as it would be unfair for the beneficiaries named in the will (or intestacy) to be left in limbo for any extended length of time.
The guidelines which have evolved are:
- The onus is on the applicant to establish sufficient grounds for extending the time limit, and depriving those who have its benefits;
- How promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired;
- Whether or not negotiations have been commenced within the time limit;
- Whether or not the estate has been distributed before a claim has been made or notified;
- Whether the applicant was able to satisfy the court that he had an arguable case that he was entitled to reasonable financial provision out of the estate;
- Whether a refusal to extend the time would leave the claimant without redress against anybody, for example their solicitor.
Very often, the failure to issue a claim within six months of the grant will be simply down to mistake or ignorance. Of this it has been said by one eminent judge that:
‘Any blunder of that sort should completely and finally deprive a litigant of recourse to the court would challenge the foundations of natural justice.’
Another danger could be making the application too early. An application for provision should not be made before the grant. The application can be so made but a practical difficulty could be ascertaining who the personal representatives are or may be. Assuming they can be ascertained the action may still be struck out as being premature. Wait for the grant by issuing a standing search at the Probate Registry.
An application to extend the time limit will normally be made in conjunction with the application for financial provision. The supporting evidence should give full details of the reason for the delay and set out why it is in the interest of justice for leave to be given and why, if leave is granted, the beneficiaries will not be prejudiced. It should also include and deal with all the guidelines above.