The Inheritance Act and extending time – the saga continues

The Court of Appeal has released its judgment in Suriya Begum v Shakila Ahmed (Personal Representative of Mohammed Yousaf Khan, Deceased).

Introduction

As we explained in our previous article on this subject, the Inheritance (Provision for Family & Dependants) Act 1975 allows certain categories of people to bring a claim against a deceased’s estate where ‘reasonable financial provision’ has not been made for them.

If a person falling into one of these categories wishes to bring such a claim, they must do so within six months of the date of a Grant of Representation being obtained. In the event of a failure to do so, a claimant will be required to obtain the court’s permission if they wish to pursue their claim.

Our previous article discussed the recent decision in Cowan v Foreman & Others [2019] EWHC 349 (Fam), in which an application to bring a claim 17 months out of time was refused, and the subsequent, successful appeal in Cowan v Foreman [2019] EWCA Civ 1336.

Since those decisions, the Court of Appeal has released its related judgment in Suriya Begum v Shakila Ahmed (Personal Representative of Mohammed Yousaf Khan, Deceased) [2019] EWCA Civ 1794.

Background

Mr Khan had died in 2015. His wife, Ms Begum, was the appellant in the matter. In his 2014 will, Mr Khan appointed his daughter, Ms Ahmed, as his personal representative and left his entire estate to her (mainly comprised of Mr Khan’s house). A Grant of Probate was obtained in April 2016, with the six month time limit for bringing a claim against the estate expiring in October 2016.

In June 2016, Ms Ahmed demanded possession of the house. Ms Begum’s solicitors responded the same month referring to Ms Begum’s entitlement to financial provision under the Act and to a challenge to the validity of the will on the grounds of testamentary capacity. Mrs Begum was, however, unrepresented between July and December 2016 (i.e. the period during which the 6 month time limit expired).

Ms Ahmed issued proceedings in November 2016 in order to obtain possession of the house. In April 2017, Ms Begum served a defence alleging the will's invalidity, but not referring to a claim under the Act.

In February 2018, Ms Begum brought a claim under the Act and sought permission to bring it out of time.

At first instance

The judge held that the claim had substantial merit and that Ms Begum would be homeless were the house to be sold. However, it was noted that the only reason for the property not being sold was her defence to the possession claim.

Having regard to procedural failings by Ms Begum’s solicitors, the judge held that there was no reasonable explanation for the delay in bringing the claim and refused to give Ms Begum permission to bring her claim under the Act out of time.

The appeal

It was held that the Act gave the court an unfettered discretion to extend time. In using this discretion, it was crucial to query whether bringing the claim out of time would cause delay in the proper administration of the estate, or have the potential to interfere with distributions which had already been made.

It was held that each of the factors listed in Salmon (Deceased), Re [1981] Ch. 167 could be important, factors which are considered further here. Most importantly, it was relevant to consider any clear prejudice to Ms Begum or Ms Ahmed if permission was refused or denied respectively.

An extension would not be granted where Ms Begum had no real prospect of success on the merits of the claim. Where the court could form a clear view of the merits, based on undisputed facts, it was right to reflect that view in deciding whether to extend time. On this basis, it was held that the Judge’s decision at first instance was flawed.

Further, whilst the judge had been entitled to take into account the lengthy delay, she had failed to analyse the effect of that delay. As the will's validity had been under challenge in any event, it was difficult to see any prejudice occasioned by the delay in bringing the claim. The judge was incorrect to completely discount Ms Begum potentially losing her home and Ms Begum had been entitled to bring her challenge to the validity of the will, which had not been determined. The judge had also wrongly considered the procedural failings of the appellant's solicitors. The delay had not been rendered worse by those failings.

Accordingly, time was extended. It was clear to Ms Ahmed that Ms Begum was considering using testamentary capacity and the Act to resist possession proceedings. She had been without representation between July and December 2016, during which period the time limit expired. Between January and October 2017, the challenge to capacity had been mounted but not the claim under the Act. Ms Ahmed could not then proceed with the sale of the property, so the failure to bring the claim under the Act caused no real prejudice.

It was further held that, on undisputed facts, the merits of Ms Begum’s claim were strong and ought to be taken into account. She was Mr Khan’s wife, had lived in the house since the 1990s, was disabled and no financial provision had been made for her in the will.

Conclusion

The Court of Appeal decision in this matter emphasises that where no substantial prejudice has been caused to the parties and the substantive merits of the underlying dispute are strong, the court can grant permission to bring claims under the Act outside of the six month time limit.

However, the case is also a reminder of the importance of taking appropriate legal advice and, depending on the circumstances at that time, either issuing protective proceedings or entering into a Standstill Agreement, although this is also not without its risks.

For any further information regarding any of the issues raised in this cases or in respect of will disputes generally, please contact David McGuire, Solicitor, on 0161 214 0523 or david.mcguire@weightmans.com, or contact another member of Weightmans’ Litigation and Disputed Wills and Estates team.

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