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If you are out of time, you are out of time – right? - Maninder Mann

Not necessarily.

The Court of Appeal in the case Cowan v Foreman [2019] Civ 1336 provided that a claim for reasonable provision can be made out of time.

Section 4 of The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) provides that the deadline for making a claim is usually six months from the date of the Grant of Representation.

The Court can however allow applications to be made out of time.

In this case, Mrs Mary Cowan brought a claim against the estate of her late husband, Mr Michael Cowan.

Mr Cowan died on the 9th April 2016 and although being married to Mrs Cowan since February 2016, they had been together since 1991.

At the time of Mr Cowan’s death his estate was worth in excess of £29 million pounds.

The late Mr Cowan had executed a Will leaving legacies to his children, personal possessions to his wife and the rest of the estate on discretionary trust for a number of beneficiaries, including his wife. The remaining assets in the estate was to be left to Mrs Cowan.

Mrs Cowan raised her concerns following an email received on the structure of her late husband’s Will. These concerns were raised to the Trustees who were operating the Trust and that it was not providing her with enough funds and was not disclosing information to her.

The parties initially entered into a standstill agreement, which provides for parties in disputes to discuss the issues at hand without enforcing the six-month deadline.

The Grant of Probate was issued on the 16th December 2016 meaning Mrs Cowan, under Section 4 of The Inheritance (Provision for Family and Dependants) Act 1975 had until the 16th June 2017 to issue her claim at Court.

After Mrs Cowan was unable to agree with the Trustees that they would not oppose her in making a claim outside of the limitation period, she issued her claim on the 12th November 2018; 17 months after the statutory limitation had passed.

The decision at first instance in the High Court found against Mrs Cowan on the basis no proper reason had been given as to why there had been a delay in her bringing a claim under the Act. The High Court also provided that standstill agreements should not be used in matters where time is to be extended.

However, the Court of Appeal took a different stance.

The Court of Appeal was satisfied Mrs Cowan was able to demonstrate that reasonable financial provision had not been provided in her late husband’s Will.

Moreover, the Court of Appeal found that each case should be determined on its own merits when analysing the reason for delays in issuing claims out of the time limit.

The Court of Appeal further provided that Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 was intended to protect Personal Representatives of the Estate and not to provide protection against stale claims.

If you require legal advice or assistance in relation to claims regarding contesting Wills or Inheritance Act claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors.

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