If you are unhappy with the provision made for you in a Will, it may still be well worth taking advice to see if you can bring a claim even if you have missed the strict legal deadline for doing so.
The Inheritance (Provision for Family and Dependants) Act 1975 says that a 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.
And recently, in a highly unusual case, the High Court did just that – allowing a claim to go ahead after an unprecedented delay of almost 26 years, the longest delay previously allowed being a mere five years and five months.
This is a complex and sometimes contradictory area of the law – in another recent High Court case, someone trying to bring a claim just 17 months late had their application refused.
And while it is clearly always best to bring a claim as early as possible to give yourself the best chance of success, it does show that each case is evidently judged on its own facts and merits and taking legal advice on your position is essential.
What happened in this particular case?
The claim was brought by a widow, Mrs Bhusate, whose husband had died without making a Will in 1990. He had five children from a previous marriage and there was said to be considerable ill feeling between them and Mrs Bhusate.
The court heard that Mrs Bhusate, who spoke little English, had been left ‘effectively powerless’ to bring a claim any earlier in the absence of agreement or engagement by her step-children who had first obstructed the sale of the home she had shared with her husband and then sat back for a further 23 years as she struggled.
The Judge, Chief Master Marsh, concluded that the reason why Mrs Bhusate had delayed so long in bringing a claim was clear – lacking money, experience and understanding she was at a clear disadvantage to her well-educated and comfortably off step-children.
The application, the Judge said, was her last resort and if permission wasn’t granted to bring a claim under The Inheritance (Provision for Family and Dependants) Act 1975, she would be left effectively homeless.
Mrs Bhusate’s case, whilst unusual, was clearly a compelling one and it does show that the Court has 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 is clearly worth taking legal advice to see exactly where you stand.
To see what else we have written on this subject, please click here.
For help and advice about contesting a Will, please contact Wards Solicitors’ Probate Disputes team.