Contested probate.. don't run out of time

“Please, sir, I want some more… time” – Solicitor Hollie Marcham looks at the risks of not making a claim against an estate within six months of the…

“Please, sir, I want some more… time” – Solicitor Hollie Marcham looks at the risks of not making a claim against an estate within six months of the date of the Grant of Probate.

In the recent case of Sargeant v Sargeant & Anor [2018] EWHC 8 (Ch) the High Court was asked to determine whether a widow could bring a claim for provision 10 years out of time.

Key Fact

Claims brought for financial provision under the Inheritance (Provision for Family & Dependants) Act 1975 have a time limit of just 6 months from the date the Grant of Representation is issued. The Court has discretion to extend that time limit but only in certain circumstances.

Case Facts

• The deceased, Joe, and his widow, Mary, had been married for over 45 years when he died in May 2005.
• Joe’s estate was valued at £3.2 million but due to planning permission being granted the value could be as high as £8 million.
• Joe left his farming estate to a family discretionary trust. The people who could benefit from the trust assets were Mary, their daughter, Jane, and her children. The trustees have complete discretion over who benefits from the trust assets and when.
• Over the years after Joe’s death, Mary ran into financial difficulties and asked for more assistance from the trustees. 
• Whilst the trust fund may have significant value, this is tied up in farming property and land; Mary and the trustees were unable to come to an agreement on further payments to her.

Considerations

Previous cases provide guidance on the factors which will be relevant to the Court. Some of the following were considered in Mary’s case:

• Whether Mary had an arguable case for provision, fit to go to trial.
• Whether Mary had a substantial case for it being just and proper for the Court to exercise its discretion.
• How promptly and in what circumstances Mary sought an extension of time.
• The reasons for delay and how promptly Mary warned the defendant of the application.
• Whether negotiations had commenced within the time limit.

Judgment

After considering all the factors and arguments from both sides, the judge refused to give permission. The judge was of the opinion that, whilst Mary did have an arguable case, fit to go to trial, she had not made out a sufficient case that it was just and proper for the Court to exercise its discretion and permit an extension of time.

The judge commented that Mary decided to continue to work within the arrangements provided by Joe’s Will rather than explore whether she had any option available to vary the terms of the Will. Mary maintained that decision for a long time and during those years, Jane continued to manage the assets and Jane had the legitimate expectation that she and her family would eventually inherit them in accordance with Joe’s wishes.

Conclusion 

Claims of this nature are inherently complex and the short time limit adds further pressure on potential claimants. Specialist legal advice should be obtained as soon as possible and this case highlights that even a widow with good prospects of a successful claim can lose at the first hurdle if they delay.

Hollie Marcham is a Solicitor in the family law team at national law firm Weightmans LLP: Hollie.Marcham@weightmans.com

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