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Insights

Can I bring an Inheritance Act claim out of time?

Posted on 07th January 2019 in Dispute Resolution

Posted by

Martin Laver

Partner and Solicitor
Can I bring an Inheritance Act claim out of time?

This insight focuses on the time limit to bring an Inheritance Act claim and in what circumstances this time limit may be extended. 

If you are making a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (“Inheritance Act”), the time limit to do so is 6 months from the date of grant of probate (or letter of administration if the deceased died with no valid will). This time limit applies to all applicants, including minor children. There are certain circumstances in which you can make an application to the Court to bring a claim out of time, but you must have sufficient grounds to do so.

When will the Court extend the 6 month time limit?
The Inheritance Act states that no Inheritance Act claim can be made outside of the 6 month time limit except with the permission of the court. There is no further guidance contained in legislation which explains when the Court may extend this time limit.

However, the law does require the applicant to provide evidence of sufficient grounds for the Court to allow an Inheritance Act claim which has passed the 6 month deadline. It is important to note that the Courts have unrestricted discretion when deciding whether to extend the time limit for an Inheritance Act claim. Therefore, each individual case can be decided on its facts so long as it is just and proper.

Case law has established a non-exhaustive list of guidelines to assist the Courts in considering whether the time limit for an Inheritance Act may be extended. Rather helpfully, Berger v Berger (2013) confirmed previous case law and outlined a number of guidelines for the Courts to consider:

• First and foremost, there must be a reasonable prospect that the claim will be successful.

• It must be considered whether the applicant acted promptly in applying for a time extension and how promptly the applicant gave notice to the defendant of the intended claim.

• The Courts should consider whether there were any negotiations which begun within the 6 month time limit. In the event of ongoing negotiations between the applicant and defendant(s) prior to the deadline, the Court may be more likely to extend the time limit to bring a claim.

• The extent to which the estate has already been distributed prior to a claim will be a factor which the Court will take into account. However, if an estate has not been distributed, this alone will not be enough to persuade the Court to issue a time extension.

• In the circumstance that the applicant may have an alternative remedy, it is unlikely that the Court will extend the deadline. An example of this is if a lawyer was negligent in their advice, and failed to issue a claim within the 6 month limit. In this situation the applicant would be able to claim against the lawyer for negligence and would therefore have an alternative remedy to an Inheritance Act claim.

• There must be an identifiable trigger to bringing the claim. In essence, the applicant must be able to show why the claim is being brought outside of the time limit set by legislation.

It can be seen then that the Court’s power to extend the deadline for an Inheritance Act claim is discretionary and is very much decided on a case by case basis. Whilst the guidelines are helpful, there is no certainty as to when the Courts will grant an extension of time.  We would advise you obtain legal advice as soon as possible to avoid any risk of missing the time limit to make a claim.

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