Beating The Clock: Bringing late inheritance claims

Beating The Clock: Bringing late inheritance claims
By Angelo Micciche TEP, CTAPS, Solicitor with Hine Downing Solicitors

A lot of legal work is ensuring that clients bring their claims in good time so they are not barred by a time limit. An example is where someone, let’s call them a claimant, brings an inheritance claim for greater maintenance or reasonable provision from a death estate. There is a time limit to issue the claim at court of 6 months from the grant of probate, where there is a will, or from the date of grant of letters of administration where there is no will (both are known collectively as grants of representation). This is why lawyers, who help with the administration of estates, usually wait, before distributing the estate. This is normally for a period of 10 months or more from the date of grant of representation, being the 6 months, plus at least another 4 months, in which time the court papers with the fully set-out claim are to be given to the beneficiaries and the executors. At this point the executors should duck out, as they are to remain neutral and must await the outcome. It is easier to make the beneficiaries wait than it is to pay out and then discover there is a claim, at which point things could get even more messy and expensive.
That may not, however, be the end of the story. What happens if someone brings a claim after that period? One example might be that a child of the deceased who is left out of the will, or one for whom adequate provision is not made out of the estate, is in need and has not been informed about the death of their parent? An estrangement might complicate the case of such a claimant but, again, that might not be determinative. The court has a discretion in such a case to give permission for a claim to proceed out of time, beyond the time limit, after an application is made and at a court hearing. There are some successful cases where the claimants were given permission to bring their claims several years after the time limit. However, certain criteria have to be met before permission to make such a claim out of time is given.
First of all, the claimant’s solicitors must act fast, and issue the late claim at court without any further delay. The application to seek permission for the claim to proceed late must be made with a written statement of evidence. The burden rests on the claimant to persuade the court that that their request for permission to bring the case out of time has merit, for some or all of the following reasons.
A good one might be that the time limit had only just expired. The claim itself for greater maintenance or reasonable provision has to have merit in the first place. A concise, detailed account must be made about how the time elapsed and how the parties and their solicitors acted and what they did as soon as they were aware of the claim. Such an account is usually best set out as a chronology.
It would not be relevant that the claimant did not bring a claim in time because, having sought legal advice, they were not told about the time limit: the courts would expect the remedy there to be to sue that solicitor for negligence, as that is not, in itself, a factor supporting an application for a claim to be made out of time. Yet again, however, it is important to stress that the urgency that a claimant and his lawyers show in bringing the late claim is relevant and must be set out in detail for the benefit of the court.
Would bringing a late claim unduly prejudice the existing beneficiaries? Have there been any negotiations? Has a distribution already been made and to what extent and where are the estate assets now? When did the claimant become aware of the death of the deceased? Is the claimant sufficiently aware of their rights, or do they need a litigation friend, a person through whom the action can be brought on their behalf (for example, on behalf of a child or somebody lacking legal and mental capacity)? If the claimant has already signed a disclaimer against bringing such a claim, that could preclude bringing any claim, late or otherwise.
These are all technical issues to consider and bringing or defending an application to make an inheritance claim out of time requires specialist and experienced advice. Please call Angelo Micciche on 01326 316655.