UK: High Court Refuses Permission To Bring Out Of Time Application Under Section 4 Of The Inheritance (Provision For Family And Dependants) Act 1975 In Hendry v Hendry & Pertiwi [2019] EWHC 1976 (Ch)

Last Updated: 8 August 2019
Article by Richard Norridge and Joanna Caen

In the latest in a series of decisions on out of time claims, the High Court refused permission to bring an out of time claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act“) where the claimant had failed to promptly bring her claim. The decision is a reminder both for claimants under the Act, and their solicitors, of the importance of bringing claims within the statutory time limits, and the potentially serious consequences of a failure to do so.

Background

Mrs Rosita Hendry met her husband, Mr Michael Hendry in 2001. The couple got married in 2003 and lived together until they separated in June 2016. Following the separation, in August 2016 Mr Hendry made a will, in which he made no provision for Mrs Hendry. In November 2016 Mrs Hendry petitioned for divorce.

Mr Hendry died in February 2017 and Mrs Hendry brought a claim for reasonable financial provision under section 2 of the Act. Probate was granted to Irwin Mitchell Trustees Ltd as executor on 29 August 2017. The deadline for Mrs Hendry to bring a claim for financial provision under the Act was therefore 1 March 2018 (6 months from the date on which representation was taken out). This claim was not issued until 27 April 2018. As such, Mrs Hendry sought permission to bring this claim out of time under section 4 of the Act.

Legal background

In determining whether to allow Mrs Hendry’s out of time application under section 4 of the Act, the judge considered the following seemingly conflicting English authorities on the matter (which both came out after the hearing in Hendry):

  1. In Cowan v Foreman [2019] EWHC 349 (Fam) Mostyn J refused permission to bring a claim 17 months out of time. That case drew an analogy with the court's approach to breaches of the CPRs and relief from sanctions, despite the fact that section 4 is a substantive, not a procedural rule. The judge considered that the proper approach to section 4 was to follow the principles set out in Berger v Berger [2013] EWCA Civ 1305 (summarised below). Permission has been granted to appeal the decision.
  2. In contrast, in Bhusate v Patel [2019] EWHC 470 (Ch) Chief Master Marsh granted permission to bring a claim almost 26 years out of time. He considered that the correct approach was to follow the guidelines set out in Re Salmon (Deceased) [1981] Ch 167 and Berger v Berger. The Chief Master was critical of drawing in the overriding objective or the relief from sanctions principles to a substantive statutory provision.

Our note on the Cowan and Bhusate decisions is available here. The decision in Cowan was very recently overturned by the Court of Appeal; the High Court’s decision in the case should therefore be treated with caution. Check back on this blog for our report on the Court of Appeal’s decision.

Decision

Permission to bring a claim out of time under section 4 of the Act was refused. In reaching this decision, the judge applied the guidelines set out in Berger v Berger:

  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?
  7. Looking at the position as it is now, has the Applicant an arguable case under the Inheritance Act if the application is allowed to proceed?

(3) Has Mrs Hendry acted promptly and what are the circumstances that gave rise to the application out of time?

Master Shuman found that Mrs Hendry’s evidence that she was trying to avoid litigation and had little money did not explain the delay in bringing the claim. The judge also noted that Mrs Hendry was aware that there was a time limit to bring her claim, and that the time started when the grant of probate was made. She was also critical of the claimant (and her solicitors) for their failure to adduce sufficient evidence to explain the delay in bringing the claim.

It seems that Mrs Hendry’s position would have been improved had (i) a protective claim been issued as soon as possible after her advisers realised they had missed the time limit; and (ii) the other side’s solicitors been informed about what steps were being taken to remedy the position.

(4) Were negotiations begun within the time limit?

Mrs Hendry’s solicitors were engaged in correspondence with Mr Hendry, later with his daughter and executor of his estate, from as early as November 2016 informing them of Mrs Hendry’s intention to bring a financial claim. The court found that, in the technical sense, negotiations had been started within the time period, but concluded that these were inadequate for present purposes. Master Shuman stated that in order for there to be effective negotiations between the parties she would have expected, at a minimum, for the solicitors to set out some considered analysis of Mrs Hendry’s claim. As such, the ground to begin negotiations within the time period was not satisfied.

(5) Has the estate been distributed before the claim was notified to the Defendants?

Whilst the estate had not yet been administered, Master Shuman did not accept that there had been no prejudice. It was the testamentary wish of Mr Hendry that his two children should each receive an equal half share of his estate. This was in spite of the fact that there was no evidence that the children had changed their position in reliance on their inheritance.

(6) Would dismissal of the claim leave the Applicant without recourse to other remedies?

Master Shuman noted that refusing permission to grant this application would not leave Mrs Hendry without recourse to other remedies; she has a potential claim against her solicitors for professional negligence as they had admitted that they missed the time limit.

(7) Looking at the position as it is now, does Mrs Hendry have an arguable case under the Act if the judge allowed the application to proceed?

Having considered (amongst other things) the terms of a pre-nuptial agreement, Master Shuman determined that Mrs Hendry had an arguable case, albeit not a strong one, but that this was outweighed by her failure to act promptly in the circumstances. The judgment makes clear that the Act sets out a substantive not a procedural time limit and that Mrs Hendry had not shown sufficient grounds to satisfy a claim under section 4.

Comment

The judge’s refusal to grant permission to bring the out of time application depended to a large extent on Mrs Hendry’s inability to sufficiently explain the delay in bringing the claim, with relatively little regard being given to Mrs Hendry’s financial status. As such, this decision is a reminder of the need to bring claims under the Act as promptly as possible, or in any event to ensure that determined efforts to negotiate and expedite claims are demonstrated.

It is also a stark reminder for solicitors acting for claimants for financial provision under the Act to give the deadline to apply for permission its due importance. Failure to do so will not only result in a potential refusal to grant permission for an out of time claim, but may also result in a negligence claim against the firm.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions