Inheritance (Provision for Family & Dependents) Act 1975, S.4: Out of time Applications

‘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 [1979] 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:

1. The Applicant is required to establish sufficient grounds for taking the case out of the general rule, given that to do so will deprive those protected by it of the benefits. The Applicant must make out a ‘substantial case for it being just and proper’ for the Court to exercise its discretionary power.
2. The time limit is a substantive provision laid down within the 1975 Act. This likely to be treated with less indulgence than ‘mere’ procedural time limits.
3. It will be material to consider how promptly the Applicant has sought the Court’s permission after expiry of the time limit.
4. The whole of the circumstances must be considered – i.e. the reasons for delay, the degree of delay, how quickly the Claimant gave warning to the Defendant of the proposed Application and whether the Applicant has done all that is reasonably possible to put matters right quickly.
5. It will be material whether or not negotiations were commenced within the time limit. If they have, and the time limit has expired while such negotiations are in train, then this is likely to encourage the Court to extend time.
6. On an Application under Section 4, the Court will consider whether or not the estate has been distributed before a claim has been made or notified. It is one thing for a beneficiary to be told that they will receive less than they had hoped for but often much worse for them to be told that something they have already received will be taken from them. Section 20(1) of the 1975 Act provides Personal Representatives who distribute the estate following the expiry of the 6-month period with statutory protection.
7. The Court will consider whether the Applicant has an alternative remedy against another person in the event that an extension was refused. This could be against their own solicitor, for providing negligent advice or causing delay.

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.

Aidan O’Brien is a member of the Trusts and Probate Team and accepts instructions in all aspects of contentious Trusts & Probate.  For more detail on his practice areas, click here.

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