Running Out of Time to Pursue an Inheritance Claim
Often clients are not aware that there are time limits imposed by the court within which they are required to start court proceedings for their claim. With some claims this deadline is a hard date and if you fail to meet it you are barred from bringing your claim thereafter.
You will often hear this referred to by specialists in the field, as limitation issues because a lot of those time frames are governed by the Limitation Act 1980.
However, in contentious probate claims the issue of limitation is a bit more of a grey area.
For claims under the Inheritance (Provision for Family & Dependants) Act 1975, for example, whilst you are required to start your claim with the court within 6 months of the date of the Grant of Probate (not the date of death as clients often mistakenly believe) the court has discretion to allow clients to bring their claim out of time under section 4 of the Act. There are various factors the court must take into account when deciding to allow a claim to be brought out of time, such as the reason for the delay, whether a solicitor was involved at any stage during that timeframe who failed to advise them of the limitation date and whether the estate has been distributed to the beneficiaries of the estate by the time the claim is eventually started with the court seeking the permission to bring it late.
Other types of contentious probate claims, often referred to as validity claims (challenging the validity of wills), have no obvious time limit to pursuing them beyond the potential application of a 12 year longstop date from the Limitation Act which has at times been used to try to stop these claims.
The issue with contentious probate claims which the courts are usually most concerned with is whether the assets remain undistributed in the estate, or at least in the hands of the beneficiaries of the estate (such as a property which has been transferred into their name and remains in their ownership), when decisions about bringing claims out of time are made.
Hayley says on the issue of delayed claims:
“We are seeing more and more prospective clients seeking advice from our specialist consultancy team who are 5 or 10 years, sometimes more, beyond the date of the deceased’s death and don’t understand why that delay could prejudice their claim.
Whilst there might be technical routes we can explore to enable you to still bring the claim out of time the reality is that late claims have logistical problems – such as the common destruction of relevant files, e.g. will preparation files, after 6 years and the fact that important witnesses may be unreachable, have lost capacity or have passed away themselves so are unable to provide supportive witness evidence.
There is a reason the courts have a catch all jurisdiction for preventing late claims under old equitable principles which clients may not have heard of, such as laches, which is for that very reason; it is difficult for the court to determine a case, let alone a defendant having equal access to justice (which the courts require) in defending the claim when key documents and witnesses (including deteriorating memories of available witnesses) hamper that process.
So whilst we have every sympathy with clients who need the time to grieve the loss of their loved one, and who may find the prospect of bringing a claim wholly unpalatable soon after their death (particularly if they have been locking horns with their opponents for many months or years prior to the deceased passing) to delay can have such a damaging effect on your claim it is really important that clients appreciate this when making those difficult decisions after their loved one’s passing.Â
It is why our specialist consultancy team are set up to deal with your enquiry in a compassionate and non-pressured way to help guide you through your rights, the funding options open to you and let you know we will be there every step of the way to help you through the process at a time when we know you are grieving and we have the experience to help clients manage both together. So I would just encourage clients to call us to see how much of a support we can be through what we know to be a very difficult time. We are specialists; we know how to help you in the right way.”
If you would like to read more about Hayley’s experience and specialist areas of consultancy practice as an ACTAPS member, you can find further details on her dedicated webpage.
Hayley’s consultancy team are happy to offer a free case assessment to discuss how they may be able to help you in your own situation including the various funding options open to you, such as no win no fee agreements, to help you achieve the just outcome you deserve.
