The Court of Appeal has overturned a ruling which refused a widow permission to claim from her late husband’s estate because she had applied late.
In what is considered a landmark decision, Lady Justice Asplin said that the High Court had been ‘plainly wrong to come to the conclusion it did’.
She gave Mary Cowan permission to pursue her claim under The Inheritance (Provision for Family and Dependants) Act 1975 against her husband’s estate, even though she had filed her application nearly 17 months out of time.
Case by case
The Court of Appeal’s judgement in Cowan v Foreman shows it believes 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 1975 Inheritance 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 clearly always best to bring a claim as early as possible, this latest case shows that if you are 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.
Mrs Cowan’s husband Michael, the inventor of the black bin liner, died in April 2016 with an estate worth about £16 million. Probate was granted in December 2016 with the six-month deadline to bring a claim expiring in June 2017.
Michael Cowan had placed the majority of his estate into a discretionary trust and in a Letter of Wishes directed at the trustees responsible for administering it, emphasised that he wanted his wife to be the principle beneficiary.
However, Mrs Cowan claimed that the lack of outright provision left her insecure and at the mercy of the trustees. She said she was struggling to access funds to pay her living expenses and medical bills.
She finally brought a claim in November 2018, nine months after her lawyers had secured a standstill agreement aimed at resolving the matter without going to court.
In effect, this suspended the strict six-month deadline to allow all parties more time to discuss the issues and concerns before taking the next step.
Standstill agreements of this sort were highly criticised by the initial High Court judge in Cowan v Foreman. Mr Justice Mostyn said at the time: “It is not for parties to give away time that belongs to the court.”
However they got a very different reception in the Court of Appeal. Lady Justice King made it clear that solicitors should feel able to use them ‘in what are often highly distressing and sensitive cases’.
Complex area of the law
Earlier this year, in another highly unusual case, the High Court allowed a late claim under the 1975 Inheritance Act to go ahead after an unprecedented delay of almost 26 years, the longest delay previously allowed being a mere five years and five months.
What is now clear is that the Court has 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 is clearly worth taking legal advice to see exactly where you stand.
For help and advice about contesting a Will, please contact Wards Solicitors’ Probate Disputes team. Head of the team, Elizabeth Fry, is recommended in the Legal 500 guide for 2019 as a leading individual for contentious trust and probate work and described as ‘diligent and persistent, skilled and effective’.