Recent guidance on bringing an Inheritance Act claim out of time

Andrew Morgan, Senior associate in the Russell-Cooke Solicitors, trust, will and estate disputes team.
Andrew Morgan
3 min Read

In the recent decision of Kaur v Bolina, the High Court granted permission for an Inheritance Act claim to be brought out of time.

An eligible claimant can bring an Inheritance Act claim (i.e. a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975) against a deceased's estate for "reasonable financial provision". For most claimants, this is a claim limited to maintenance. For spousal/civil partner claimants, the maintenance limit does not apply. The claim must be brought within six months of the grant of representation, but the Court may permit claims to be brought after that time.

Circumstances of the case

In Kaur v Bolina, the late Mr Bolina died in September 2019. Mr Bolina left a will which left his entire estate (valued at approximately £300,000 - £350,000) to his two adult children. The will made no provision for Mr Bolina’s estranged wife, Mrs Kaur.

In December 2019, a grant of probate was extracted by the adult children, who were executors of the will. This meant that the six month time period to bring an Inheritance Act claim expired in June 2020.

In November 2020, Mrs Kaur’s solicitors discovered that the time period had elapsed five months ago, and promptly sought permission to bring a claim out of time.

The decision 

The Court has a wide discretion when determining an application to bring an Inheritance Act claim out of time. That discretion is informed by previous case law and consideration of a number of factors, including:

  • the onus being on the claimant to show sufficient grounds for permission
  • whether the claimant had acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit
  • whether the estate had been distributed before the claim was notified to the defendants
  • whether the claimant had an arguable case

The broad scope of the Court's discretion inherently means that cases turn on their own facts. In Kaur v Bolina, the Court allowed Mrs Kaur to bring her claim out of time, taking into account a number of factors.

  1. Mrs Kaur acted promptly to seek permission.
  2. Although the estate had been distributed in August 2020, the distribution was "not complex" (i.e. presumably because it had been made by and to the adult children, who were defending Mrs Kaur's claim). Moreover, Mrs Kaur notified the adult children of the claim in May 2020, before the distribution and also before the six month time window expired.
  3. Mrs Kaur had an "arguable" case in circumstances where she received no provision following a marriage of seven years and appears to have limited assets and a limited income.

Learning points

Prevention is nearly always better than the cure. It is unclear whether Mrs Kaur entered a 'standing search'. This is a notice to prompt the Probate Registry to supply a copy of the grant of probate, once it is extracted. In practical terms, Mrs Kaur could have entered the 'standing search', found out when the grant of probate was extracted and issued her claim before the six month time period expired. This would have avoided the costs and uncertainty of the permission application.

In addition to granting permission, the Court gave directions for the further conduct of the claim. The Court ordered there to be a FDR (Financial Dispute Resolution) hearing. At an FDR hearing, a judge would provide a non-binding indication as to the outcome of the claim. It aims to help the parties narrow issues, negotiate and reach settlement to avoid further litigation. The requirement for an FDR hearing reinforces the Court's encouragement for alternative dispute resolution, particularly at an early stage in litigation.

A key takeaway point for any eligible claimant is to take legal advice and act as soon as possible. Mrs Kaur’s prompt response in November 2020 minimised the time delay. There is authority for permission to be granted beyond a five month delay, but each case must be assessed on their own circumstances.

Get in touch

If you would like to speak with a member of the team you can contact our trusts wills estate disputes solicitors by email, by telephone on +44 (0)20 3826 7530 or complete our enquiry form.

Briefings Individuals & families Trust, will and estate disputes private client Inheritance Act claim succession Andrew Morgan litigation disputes Court of Protection