‘It is not only Heaven that helps those who help themselves’
An Application for reasonable financial provision under Section 2 of the Inheritance (Provision for Family & Dependents) Act 1975 (‘the 1975 Act’) must normally be made within 6 months of the date on which effective representation with respect to the estate is first taken out, pursuant to Section 4 of the 1975 Act. In the event of uncertainty as to the relevant date, searches at the Probate Registry can confirm the position.
It is not uncommon for clients to seek legal advice after the expiry of this 6-month period. Under such circumstances, the cardinal rule is to act with the upmost alacrity so as to improve the chances that an Application can proceed.
Discretion to Allow Out-of-Time Applications
The Court has discretion under Section 4 of the 1975 Act to permit out-of-time Applications. This discretion is unfettered by the 1975 Act – it must be exercised judicially, in accordance with what is just and proper.
Re Salmon Deceased  3 WLR 802 set out a non-exhaustive list of factors that the Court will have regard to in deciding whether to accede to any request for indulgence. The principles can be summarised thus:
Further to the above, the Court will have regard to whether the Applicant has an arguable case in determining whether to grant the request. A tardy Applicant will find greater favour if they can demonstrate that there is a triable issue (much like when arguing against Summary Judgment).
The aforementioned factors are far from comprehensive. Ultimately, Applications for an extension of time will be decided on the specific facts of each case. It would be unwise to assume that there is a broad rule of thumb relating to the period of extension required. Moreover, in the event that delay is inevitable (say when a claim cannot proceed due to litigation which needs to be concluded first) practitioners should be sure to start proceedings and request an adjournment rather than seeking to fall back on the Court’s power to extend time.