When someone has died, if they have failed to make ‘reasonable financial provision’ for certain relatives or dependants, the court may intervene and make an award to the disappointed claimant, under the Inheritance (Provision for Family and Dependants) Act 1975.

But there is an important provision which applies to these claims – they must be issued at court within a very strict time limit: 6 months from the date of issue of the Grant (the document that enables an estate to be administered). In special circumstances, section 4 of the Inheritance Act provides the court with discretion to allow a claimant permission to bring a claim ‘out of time’.

In a case that’s hit the headlines recently, the widow of a millionaire applied to court for permission to bring a claim out of time. Following the death of her husband Robert Hinds in 2020, his widow Amanda Hinds brought a claim against her late husband’s children, who were left the bulk of his estate.

Robert Hinds had run a successful coarse fishing ground, Water End Fisheries in Bedfordshire. Amanda was his second wife and her husband’s sole carer for the last six years of his life. Following his death, Mrs Hinds was shocked to discover that in her husband’s 2017 will, she had been left only £100,000; 10 per cent of his £1m estate.

Robert’s two children from an earlier marriage, Samantha and Alex, inherited 80 per cent of the estate, with the other 10 per cent passing to grandchildren.

It is not entirely clear as to why, given that probate was granted in September 2021, Amanda did not then make her application to court within the six-month deadline, other than her barrister told the court that she had been under the impression she had 12 months, not six, to lodge a claim.

What are the relevant factors for the court to consider?

The Court of Appeal confirmed in the case of Berger v Berger [2013] EWCA Civ 1305 that when deciding whether to use its discretion, the court must consider whether the claimant has acted promptly and the circumstances in which he or she applied for an extension of time after the expiry of the six month time limit.  The court will take into account the following factors:

1. The merits of the claim

Does the claim for financial provision have a realistic prospect of success (if it had been made in time)?  If the answer is no, the application will most certainly fail.

2. Had any negotiations taken place before the time limit expired?

Had negotiations started within the six months? If so, it is more likely that an extension of time will be permitted.

3. Had the estate already been distributed?

The court will be concerned not to impact the existing beneficiaries of the estate, in the event that the (delayed) claim would succeed.  The extent to which the estate has already been distributed will be a relevant factor. However, just the fact that the estate is undistributed does not mean that a claimant will get permission to bring the claim out of time.

4. If the claim is dismissed, would the claimant have any other remedy?

Where there is another remedy available against some other party, eg a negligent solicitor who failed to advise the claimant of the six-month time limit, this may persuade the court to refuse permission to bring the claim.  This would allow the existing beneficiaries to keep their full inheritance, and then the claimant could recover what they would be entitled to under the Inheritance Act from the negligent solicitor.

5. Is there a good reason for the delay?

A common factor of most cases where applications have been successful is the existence of a special intervening explanation. In Re C (Deceased) [1995] 2FLR 24, the court permitted a claim on behalf of the deceased’s 8 year old child to be brought 18 months out of time because the delay was caused by the child’s mother.  The court felt that to deny the application would cause the child to suffer at the result of another’s fault, which would be deeply unfair.

In the case of McNulty v McNulty [2002] W.T.L.R. 737 the Court granted permission despite a three-and-a-half-year delay in bringing the claim. In this case the distinguishing factor was that the true value of the estate was withheld from the claimant, and as soon as the claimant became aware of the true value, proceedings were issued.

In the previously mentioned case of Berger v Berger, the estate was worth in excess of £7m, with much of the estate left on trust.  Mrs Berger was the elderly widow of the deceased and came to the conclusion, nearly six and a half years after the issue of the Grant of Probate, that she was not being properly provided for under the will and trusts.  The Court of Appeal in that case refused permission to bring the claim out of time because it was felt that there was no particular event that provoked the claim to be brought at the time that it was.

In the case of Wickham v Riley [2020] EWHC 3711 (Fam), the High Court allowed the claimant to issue his claim out of time. The claimant was, at the time of his father’s death in 2014, a child. The proceedings continued into his early adulthood, but even as an adult child, he remained vulnerable and in considerable financial need. He was in receipt of benefits and had not obtained key GCSEs so his future prospects of employment were uncertain.

With the settlement of his claim for around £100,000 looking probable, the claimant very surprisingly took steps to withdraw his claim. After a change of heart, he asked the court to allow him permission to continue it. The judge ultimately decided that the claimant’s decision to discontinue his claim was effective, but he was allowed to re-issue his claim outside of the 6-month time limit.

What happened in the Hinds case?

It was argued on Amanda Hinds behalf that she had a strong moral claim, in part because she had cared for her husband and because she was on a very limited income, living off benefits in a housing association property.

The judge said of the claimant:

“She is elderly and of pensionable age, the marriage lasted eight years and six of those years were spent by the claimant in caring for the deceased when he needed it,”

But he found her evidence about her financial needs ‘unsatisfactory’ and he could not on that basis find that the existing provision of a 10% share of the £1m estate was not reasonable.

The judge was also critical of the delay, stating:

“I don’t consider that the claimant did act promptly in the circumstances when she applied for an extension of time….she was aware of the grant of probate. She was told about it and she doesn’t explain why she thought she had 12 months, rather than six, to bring a claim. Overall, I consider the explanation for the delay to be unsatisfactory.”

The application was an expensive one for Amanda Hinds, who will have had to pay her own solicitor’s costs as well as those of her stepchildren which amount to £26,000.

What’s the lesson from these cases?

It is by no means easy or straightforward to bring a claim under the Inheritance Act out of time and applications for permission are often refused unless there are special factors at play. If in doubt, claimants should issue court proceedings within the 6 month deadline; there are legal mechanisms to ensure that the claim can be ‘put on hold’ if that’s necessary to enable negotiations to take place. Delay can be fatal to a claim.

Sarah Young – Director & Solicitor