A disabled widow facing homelessness has been given permission by the Court of Appeal to bring a claim against her late husband’s estate despite missing the legal deadline to do so by a year.
The court, overturning a previous judgement, declared it was ‘just and proper’ in the circumstances to give 60-year-old Ms Suriya Begum more time to pursue her claim.
It said the merits of her claim were strong – her husband, Mr Mohammed Yousaf Kahn, had made no financial provision for her in his Will leaving his entire estate to his daughter, Shakila Ahmed, who wanted to sell the home Ms Begum had lived in since 1993.
This decision adds some further clarity and consistency to how late, or out of time, applications under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) may be approached in the future.
It follows the Court of Appeal judgement in Cowan v Foreman which also indicates that out of time Will disputes should be considered on a case by case basis with the prospect of success a more important factor than the reasons for any delay in bringing the claim.
Currently, the Act stipulates that any claim must be brought within six months of the date of the grant of probate unless the court gives special permission to proceed out of time.
Whilst it is always best to bring a claim as soon as possible, these latest cases show that if you’re unhappy with the provision made for you in a Will, it may still be worth taking advice to see if you can bring a claim even if you have missed the strict legal deadline for doing so.
Mr Kahn died in March 2015 leaving his entire estate, which mostly comprised of his house in Dudley, to his daughter Ms Ahmed whom he’d also appointed as his personal representative. His Will made no provision for Ms Begum.
Probate was granted on 11 April 2016 with the six month deadline to bring a claim expiring on 10 October 2016.
In June 2016, Ms Ahmed demanded possession of the house. Ms Begum’s solicitors countered by citing her entitlement to financial provision under the Act and also a challenge to the Will on the grounds that Mr Kahn lacked testamentary capacity when he made it.
Ms Begum then stopped instructing her solicitors and as a result, her claim for financial provision was not made by October 2016 when the six month deadline expired.
In November 2016, Ms Ahmed issued possession proceedings in relation to the house but it was only a year later in November 2017 that Ms Begum’s solicitors applied for financial provision under the Act.
A district judge and then a circuit judge both refused to give Ms Begum permission to bring her claim under the Act out of time. She then took her case to the Court of Appeal which gave her the go-ahead.
It’s clear that courts now have a wide discretion when considering how late a claim can be brought.
Even though it’s likely that only short delays will be permitted when bringing a claim in anything other than exceptional circumstances, it’s clearly worth taking legal advice to see exactly where you stand.
For help and advice about contesting a Will, please contact Wards Solicitors’ Contentious Trusts and Probate Team. The team is praised by the independent Legal 500 Guide for 2020 for its excellent track record in dealing with high-value disputes over Wills, trusts and probate. It is also commended for its handling of cross-jurisdictional issues including assessing the validity of Wills and the sale of property relating to deceased family members.
Head of the team, Elizabeth Fry, is highlighted as a key lawyer, regularly representing private and business clients on disputes relating to the Inheritance Act. She is described as experienced, knowledgeable as well as ‘compassionate, understanding and non-judgemental’.