Bringing Inheritance Act Claims Out of Time
Jan Samuel 19-08-2019
In May 2019, Samuels reported on the case of Cowan v Foreman in which the Claimant, (a widow) issued a claim under the Inheritance (Provision for Family and Dependants Act) 1975 against her late husband’s estate seventeen months out of time. Permission for the claimant to make the application out of time was refused, with the Judge (Mr Justice Moyse) stating that his decision was consistent with the overriding objective on rule compliance in the Civil Procedure Rules.
Lawyers acting for the Claimant lodged an appeal following the decision in a subsequent case (Bhustate) in which the use of the Civil Procedure Rules was dismissed and the Court granted permission for the Claimant to bring a claim despite the application being made more than 25 years after the six month limitation period.
On appeal, the Court of Appeal overturned the decision in Cowan. Lady Justice Asplin said that Mr Justice Moyse was “plainly wrong” to disregard the application as it was made 17 months after the six month period had expired and that the Judge was wrong to seek “good reason” to justify a delay.
She stressed that unlike the provisions of the Civil Procedure Rules, the six month time limit was not to be enforced for its own sake and said that it was necessary to decide whether a claim had real prospects of success rather than a fanciful one.
The appeal Judge also appeared to endorse stand-still agreements which were criticised by Mr Justice Moyse, who stated that it was for the Court to decide on acceptable time periods in which cases should be brought for inheritance act claims, not the parties.
On standstill agreements Lady Justice Asplin said that without prejudice negotiations between the parties, rather than issue of proceedings should be encouraged. She added “I should stress however that if parties chose the ‘stand-still’ route, there should be clear written agreement setting out the terms/duration of such agreement and each of the potential parties should be included in the agreement”.
The case has been widely followed by the legal profession because of the condemnation of stand-still agreements which have been used for years.
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