Inheritance Act Claims – an application delayed is often an application denied

Dispute Resolution | 9th July 2018

Following a death, it is possible for a claim to be made against the deceased’s estate on the basis that the distribution of their estate be “varied” from the position under the will (if there is one) or the intestacy rules if there is not.

To succeed a claimant must prove;

  1. That they come within one of the recognised categories of applicants e.g. a spouse or a child.
  2. That the will, or as appropriate, the intestacy rules do not make reasonable financial provision

If the court is satisfied on both of these points then it can go on to order that reasonable financial provision should be made based on a list of relevant factors.

There is generally a short term period of 6 months from the grant of probate (or letters of administration if there is no will) but the court does have a discretion to extend that in appropriate cases. In one case in 1994 a claim was allowed 6 years after the grant of probate albeit in particular circumstances. A recent case has reconsidered how that discretion should be exercised.

Previous case law has established that the discretion is unfettered but must be exercised in a way that is ‘just and proper’. The claimant needs to establish that they have a substantial case and it is also relevant to consider whether the estate has already been distributed. Other relevant factors are how far after the expiry of the limitation period the claim was brought and whether any settlement negotiations had occurred before the limitation period had expired.

In a case decided earlier this year a widow made an application over 10 years after the grant of probate. The estate was a substantial one including some farmland which as a result of outlying planning permission for a housing development had become more valuable. Although under the terms of the deceased’s will the bulk of the deceased’s estate was left on a discretionary trust in which the widow was one of the potential beneficiaries the claim was based on the fact that because the trust was capital rich but cash poor the widow was not receiving sufficient income from the trust to live on.

If she had been allowed to bring her Inheritance Act claim the court would have taken into account her age, the duration of the marriage and the provision that she might reasonably have been expected to receive if on the date of death the marriage had been terminated by divorce instead. Although the judge accepted that the claimant might have an arguable claim for a potentially substantial share of the matrimonial assets belonging to a multi-millionaire following a 45 year marriage, the claim was refused. Although the grant of planning permission was a significant change the judge in effect decided that in order to justify a very late application for permission the change must be something entirely outside the applicant’s control and genuinely unforeseen. In this case the widow had been involved in all of the estate planning prior to the deceased’s death, was a trustee of the will trust and was fully informed and involved in all of the material issues and decisions including the possibility that planning permission would be obtained.

The message is really therefore that in these sorts of situations you need to take professional advice from an expert in the area at the earliest possible opportunity because otherwise you may not get the opportunity of a ‘second bite of the cherry’.


This is not legal advice; it is intended to provide information of general interest about current legal issues.

Paul Grimwood

Partner, Head of Dispute Resolution

As Head of Dispute Resolution Paul has extensive experience of dealing with a wide range of disputes focusing in particular on professional negligence...