Running a Late Application for Financial Provision on Behalf of a Disappointed Adult Child
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, provide a snapshot of the key points to bear in mind in connection with a late application for financial provision on behalf of a disappointed adult child
What is a financial provision claim and when is it late?
We have addressed basic principles in relation to adult child financial provision claims in our previous blogs:
Inheritance Act claims by “adult children” – a game of chance? | Willclaim Solicitors
These are claims for financial provision by disappointed adult children of a deceased parent under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”):
Inheritance (Provision for Family and Dependants) Act 1975 (legislation.gov.uk)
For the reader who is new to this area of law, this statute operates as (largely) the sole exception to the current legal position in England and Wales that an individual has complete freedom to leave his/her estate to whoever he/she sees fit, notwithstanding he/she might have dependant children and a spouse. In the early part of the 20th Century Parliament decided to act to prevent obvious need arising from these somewhat harsh decisions. By 1975 it was firmly fixed that this statute could also apply to adult and not just to minor children; spawning a fertile (if not febrile) spate of cases where Judges tried their best to determine and/or limit the extent to which some provision would be made for adult children. We are currently left with a rather vague Judgment by the Supreme Court on the question in Ilot v The Blue Cross and others [2017] UKSC 17:
Ilott v The Blue Cross & Ors [2017] UKSC 17 (15 March 2017) (bailii.org)
But what could make such a claim late?
By section 4 of the Act, an application “except with permission of the Court” shall not be made after the end of the period of six months from the date on which representation with respect of the estate of the deceased is first taken out. Put another way, an applicant under the Act must issue his/her claim within 6 months of the date of the Grant of Probate (or Letters of Administration).
The get out of jail card – permission of the Court can be sought even if the claim is brought after the six month period has expired
Again there are a multitude of cases which guide the Court as to the exercise of its discretion. However, as a practitioner, one is looking for some obvious features to include:
1. the estate is still largely intact;
2. the applicant has a very good case;
3. the applicant was not previously advised by a Solicitor as to the deadline which was then missed;
4. the applicant otherwise has a very good reason for missing the deadline.
It has long been established that the starting point for the Court in such a case are the guidelines formulated by Megarry J in Re Salmon [1981] Ch 167 and expanded slightly in Re Dennis [1981] 2AER 140 and endorsed and summarised by the Court of Appeal in Berger v Berger [2014] WTLR 35:
Section 4 does not give any guidance as to how the Court should approach an application for permission but there is no dispute between the parties as to the Judge’s formulation of the correct approach to such an application. He distilled what he called “the following propositions” from Re Salmon [1981] Ch 167 and Re Dennis [1981] 2AER 140:
(1) The Court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
(2) The onus is on the applicant to show sufficient grounds for the granting of permission to apply out of time.
(3) The Court must consider whether the applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit.
(4) Were negotiations begun within the time limit?
(5) Has the estate been distributed before the claim was notified to the Defendants?
(6) Would dismissal of the claim leave the applicant without recourse to other remedies?
If you consider any of these facts and matters are of interest, 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 and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.