HOW TO CONTEST A WILL – BRINGING A CLAIM OUT OF TIME
DISPUTING A WILL – IS IT POSSIBLE TO BRING A CLAIM OUT OF TIME?
Firstly is there a time limit? The answer is no in relation to a claim against the legal validity of a Will (eg. a Will contest claim that the Will isn’t valid because it wasn’t signed by the person making the Will in front of two witnesses who also signed, because he or she didn’t understand what was going on or because he or she was forced into it).
The answer is yes where a claim is being made for financial provision by a near relative, spouse or dependent person. This sort of Will dispute is a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975. The person bringing the Will claim is not challenging the legal validity of the Will; put simply he or she is saying its contents are unreasonable given his/her financial and health issues. This type of Will dispute claim does have a time limit which is six months from the date of the grant of probate.
IS IT POSSIBLE TO SEEK AN EXTENSION OF THE SIX MONTH TIME LIMIT IN RELATION TO CLAIMS FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975 (“the Act”)
The simple answer is yes! An application can be brought under section 4 of the Act (see https://www.legislation.gov.uk/ukpga/1975/63/section/4).
The court has a discretion to allow a financial provision Will contest claim to be brought after the six month period following the grant of probate has expired.
WHAT IS A GRANT OF PROBATE AND WHY IS IT NECESSARY?
A Grant of Probate is the licence to the Will Executor (the “Will Executor” is the person nominated by the person making the Will to take responsibility for the administration of her/her estate) to start to call in the estate assets and to distribute them in accordance with the Will instructions. The government has to have some policing role to check that the Will is a genuine document and because it wants in some circumstances to claim tax from the estate (if it is big enough).
IN WHAT CIRCUMSTANCES WILL THE EXTENSION OF TIME BE GIVEN?
In Will contest claims to date, it has generally been ruled by the Court that an extension would only be granted within at worst a few years after the expiry of the six month time limit. There are practical reasons for doing so. For instance, once the estate has been distributed it is likely to prove impossible to recover sums that might be used to pay for the successful financial provision claim. However a key element of any successful application for further time will always be evidence that absent the issue of one bringing the claim out of time, it would have been successful. This essentially filters out all but the most compelling cases.
In an interesting recent development a Court has allowed a claim for financial provision to proceed no less than over 25 years out of time!
The case in question is called Mrs Shantabai Bhusate v Dr Mangala Patel and others (2019) EWHC 470 (Ch) https://www.lawgazette.co.uk/download?ac=33428
The Claimant was given permission to proceed on the following grounds:
1. The merits of her claim under the Inheritance Act were found to be very strong;
2. The delay in bringing the claim could be explained and in particular was caused by matters which were outside of her control (in other words it wasn’t her fault);
3. There was evidence that the Defendants to her claim were at fault because they obstructed the sale of a property which formed part of the estate (they now stood to benefit for their obstructive behaviour by denying her the prospect of bringing her claim out of time);
4. If the application weren’t granted the Claimant would have had no remedy at all and she ran the risk of becoming homeless.
Whilst such a result in a Will contest claim might encourage certain historical applicants, it was I suspect something of a one off. It seems highly unlikely that most claims of a similar age will succeed.
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.