Out of time but in luck: Court overturns ruling and allows widow to bring claim after she misses deadline

1st August 2019 Will Disputes

The recent judgment in the case of Cowan v Foreman & Ors [2019] has been overturned.

The judgment at first instance refused permission for a widow who was attempting to contest her husband’s will outside of the time limits under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act„) to bring a claim against his estate.

Under the Act, once probate is granted, an individual has six months within which to bring a claim. The judgment at first instance ruled that the widow’s application was not valid as there was ‘unnecessary delay’ resulting in the application being made 17 months too late. Furthermore, the Court stated that ‘standstill agreements’ used by solicitors to buy more time to assist parties in trying to reaching a settlement without the need for the issue of Court proceedings should come to an immediate end, as they represented the parties giving away “time that belongs to the Court„. That was a surprising decision to practitioners and litigants alike given the general emphasis within litigation of making serious efforts towards settlement at an early stage and a feeling that proceedings should only be commenced if attempts of that nature had been exhausted.

That judgment has been overturned by the Court of Appeal and the widow has now been granted the right to pursue her claim outside of the six month time limit.

The judgment set out that, although the power to extend the six month period belongs to the Court alone, attempts to enter into negotiation rather than issue proceedings “should be encouraged„. Lady Justice Asplin commented in her judgment that where the parties have agreed to an extension and have been legally represented it seemed to her “that it would be unlikely that the Court would refuse to endorse the approach„.

Whilst it should be said that entering into ‘standstill agreements’ will not bind the Court and the Court may still decide depending upon the particular circumstances of a case that an extension is not appropriate, the judgment appears to suggest that by and large they will be accepted by the Court. This is especially important in claims under the Act due to the short time frame available before a claim must be issued. The benefit of the Court acknowledging this approach is that it could result in the avoidance of Court proceedings and could ensure that considerable legal costs are saved by all parties in these types of claim.

Furthermore, Lady Justice Asplin highlighted in her reasoning that the Act does not operate in such a way to require the six month time limit for bringing a claim to be enforced for its own sake. Any reason for delay should be considered as one of many relevant factors and should not in itself constitute a reason to refuse an application made outside of the time limit.

This is significant as delay often occurs in many cases for a variety of reasons e.g. a claimant may not even realise they have been left out of a will until sometime after the Grant of Representation to the Deceased’s estate has been issued, or it may be that gathering the information required by the respective parties to allow them to consider any claim may not be available within the prescribed time limits. If the judgment had not been overturned, it is conceivable this would have resulted in parties being less willing to enter into pre-litigation correspondence and negotiations and many more claims being issued which would in all likelihood have increased costs for all parties, often unnecessarily.

It was also emphasised that more important factors to consider when deciding whether to grant an application outside the time limits are whether or not the claim has a real prospect of success and the balance of prejudice to the claimant versus other affected parties. These factors and the particular circumstances of the case being considered, should determine whether an out of time application is allowed.

In conclusion, whilst the power to extend the six month time period belongs to the Court, the Court of Appeal has reinforced that negotiation and mediation between parties should be encouraged and it has ensured that parties will not automatically be penalised for doing so even if causing delay in cases of this nature.

While legal representation should still be sought as early as possible, the judgment is significant as it reduces the time constraints placed on claimants and eases the pressure to issue proceedings at an early stage in claims which could otherwise potentially be settled without the need for Court proceedings if advisors prepare and agree an appropriate standstill agreement.

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Alison Parry is a Partner located in Manchester in our Commercial Litigation, Will and Trust Disputes department

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