20 January, 2021
In 2020, the High Court handed down a judgement in the appeal case of Thakare v Bhusate  EWHC 52 (Ch). The case involved an out of time claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act). The case is significant as the Claimant was successful in obtaining permission from the court to bring a claim under the Act, despite being 25 years over the six-month time limit to make a claim.
The Claimant, Mrs Bhusate, had married Mr Bhusate in 1979. She was his third wife and they had one son together. Mr Bhusate had five children from his previous first marriage. In 1990, Mr Bhusate died intestate so did not leave a will. In the absence of a valid will, the rules of intestacy applied to Mr Bhusate's estate. This meant that Mrs Bhusate was entitled to a statutory legacy of £75,000 and a life interest of a one-half share of her husband's residuary estate.
The main asset in the estate was the matrimonial home which Mrs Bhusate continued to reside in with her son after her husband's death. The property was valued at £135,000 when the grant of administration was obtained in 1991. However, by the time the appeal was heard in December 2019, the property had increased considerably in value and was worth around £850,000.
After her husband's death in 1990, Mrs Bhusate was unable to reach an agreement with her five stepchildren as to how his estate should be distributed. In addition, the matrimonial home was never transferred to her.
In 2017 Mrs Bhusate commenced a claim under the Act, as the deceased's spouse, for reasonable financial provision from his estate. Mrs Bhusate's stepchildren were the proposed defendants in the claim.
The Act contains a time limit for making such claims. Section 4 states that an application must be made within six months from the date on which representation with respect to the estate is first taken out. This means that in cases where the deceased has died intestate, a potential claimant will have six months to make a claim from the date that letters of administration are granted.
In Mrs Bhusate's case, letters of administration were granted in 1991, which meant by 2017 she was over 25 years passed the six-month time limit under the Act to issue the claim.
After the time limit has expired, the only way to make a claim under the Act is by obtaining the permission of the court. The court will then consider several factors when determining whether to exercise its power to grant a claimant permission. Mrs Bhusate made an application under Section 4 seeking the permission of the court to make a claim.
On hearing Mrs Bhusate's application in the first instance, Chief Master Marsh granted permission for her to make a claim. He considered the following factors were particularly relevant in the case:-
Mrs Bhusate's stepchildren appealed against the decision to the High Court on several grounds, including that Chief Master Marsh's decision was incorrect.
At the appeal hearing, the High Court agreed with Chief Master Marsh and upheld his decision. It was noted by the High Court that the 25-year delay to make a claim was 'very exceptional' but, considered that on the facts of this particular case, Chief Master Marsh had been right to grant permission. The High Court highlighted in the case the fact that the court ultimately has an "unfettered discretion" to permit out of time claims.
Although Mrs Bhusate's application was successful, it was made clear by the High Court that a lengthy delay to make a claim, without a reasonable explanation, is still likely to result in an application for permission being refused.
The key factors the court will take into account when considering whether to grant permission to bring an out of time claim, regardless of the length of the delay, are the prospects of the claim's success if it were made and the likely prejudice caused if the application for permission was granted or refused.
If you consider you may have exceptional circumstances which have prevented you from making a claim under the Act for reasonable financial provision, within the specified time limit, we can assist. We can carry out the necessary investigations to advise you on a potential claim. Considering the legal position, we can then act on your behalf in making an application to court for permission to bring an out of time claim. Depending on the facts of your case, we are also able to offer a range of different funding options.
For more information contact Tom Howcroft in our Contesting a Will department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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