With most claims, the law imposes a time limit in which they must be brought or they will be time-barred. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are slightly different in that the Act states that an application shall not be made after the end of six months from the date on which Grant of Representation was taken out except with the permission of the Court. In most cases, that means it is best to issue proceedings within the six-month period but sometimes there may be good reasons for not doing so.

For understandable reasons, such cases do not come along that often. However, in Sargeant v Sargeant and Thompson (2018), the principles behind the granting of permission were re-examined.

The first principle is that the discretion is unfettered, to be exercised judicially and in accordance with what is just and proper, which makes it difficult to advise on the outcome of any application with any certainty.

The onus is on the person seeking to obtain permission. The question of how promptly, and in what circumstances, the claim has been brought is relevant. The Court considers whether negotiations were commenced within the time limit or whether the delay after expiry may be accounted for by negotiations. Where the estate had been distributed, a Court is less likely to grant permission and will assess whether the Claimant has any other redress. Before permission is granted the Court will assess whether the claim is arguable. If not, there would be little point in granting permission in any event.

In this case of Sargeant, the claim was clearly arguable. The claimant, Mrs Sargeant, had been married to the deceased who was a farmer with substantial assets. The Claimant’s son from an earlier marriage received nothing under the Will. The Defendants were the only daughter of the Claimant and the deceased, and the solicitor Mr Thompson who was also the other Executor. The deceased left a few items to his estranged step-son, and the benefit of a life policy worth £75,000 to his wife. The rest of the substantial estate, worth £3.2 million and potentially rising to £8 million at trial, was held in a Discretionary Trust, the potential beneficiaries of which were his wife, his daughter and his daughter’s children.

The problem for Mrs Sargeant was that the trust was cash poor but asset rich. Whilst her husband had left a Letter of Wishes, stating that he wanted his wife to have the benefit of all the assets while she was alive, that did not help her a great deal because the assets did not produce much income. The deceased died in May 2005 and in the subsequent years there were several meetings between the Claimant and her daughter and the solicitor (all parties to this claim) to look at options to help the Claimant with her income. On some occasions, it was suggested by the solicitor that land could be sold to raise cash but the daughter refused and her mother was not prepared to dissipate the assets against her daughter’s wishes. Eventually, the Claimant’s son became involved and, in 2016, proceedings were issued.

In considering the matters, the Judge was satisfied that the Claimant had understood that she was not receiving the assets and understood her position as a discretionary beneficiary under the trust. The Claimant’s case was that she had not understood it until her son had become involved in 2014.  The Judge was satisfied that, throughout the entire period, the solicitor made it plain that he was only advising the Executors and Trustees, and that both the Claimant and her daughter could obtain independent legal advice if they wished. He had also proposed ways of creating more income for her by selling assets. The Claimant stated that she did not blame the solicitor for any of the advice given and she was involved in all meetings relating to the creation of the Wills.

In the circumstances, the Judge reached the conclusion that the Claimant had not made a sufficient case to allow the claim to proceed.

He pointed out that this was not a case in which any material facts had been concealed or where the Claimant had been misled. He found that the Claimant decided to continue to work within the arrangements provided for by the Will, rather than explore alternative options available to vary them, in full knowledge of her financial difficulties and that she maintained that decision over a very long period. Thus, whilst she was not explicitly advised that she might consider a claim under the 1975 Act, she was made aware of the availability of independent advice but had decided against taking it and to live with the situation. Nothing had changed dramatically during that period and, accordingly, she was refused permission to bring a claim despite her financial difficulties.

Accordingly, whilst it is possible to obtain permission to bring cases out of time, the Court will look carefully at all the facts available. Unless the Claimant can satisfy the Court that their failure to bring a claim within six months is justifiable, there is a real risk that their application to bring a claim will be refused, even where a Claimant has a potentially strong claim.