Keeping it in the family
Date: 04 June 2009
Authors: Malcolm Skinner
Issue: Vol 159, Issue 7372
Categories: Features, Family, Procedure & practice
An application for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) cannot be commenced after the end of six months from the date on which a Grant to the estate is first taken out without the permission of the court (s 4).
A Grant is not deemed to have been first taken out if it is limited to settled land or to trust property. Similarly a Grant limited to real or personal estate is ignored unless a grant limited to the remainder of the estate has already been made or is made at the same time.
The court can grant leave to take proceedings under I(PFD)A 1975 outside the time limit but this discretion is used sparingly. In Re Salmon (deceased), Coard v National Westminster Bank Ltd and others [1980] 3 All ER 532 Sir Robert Megarry V-C approved some and laid down other guidelines to apply on such an application, namely:
● the onus lies on the plaintiff to establish sufficient grounds of taking the case out of the general rule, ie a fixed time limit, and depriving those who are protected by it of its benefits;
● how promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired;
● whether or not negotiations have been commenced within the time limit;
● whether or not the estate has been distributed before a claim under I(PFD)A 1975 has been made or notified;
● whether a refusal to extend the time would leave the claimant without redress against anybody, eg their solicitor.
Mr Justice Browne-Wilkinson in Re Dennis (deceased) ([1981] 2 All ER 140) added a further consideration—whether the applicant was able to satisfy the court that he had an arguable case that he was entitled to reasonable financial provision out of the estate. The criterion of an arguable case was the same as that applied by the court in deciding whether a defendant should have leave to defend in proceedings for summary judgment.
Practice Direction [1976] 2 All ER 447 makes it clear that when making an application for an extension of time under I(PFD)A 1975 the claim form for financial provision should expressly ask for this. It should be the first item of relief claimed. The reasons for making the application should be included in the supporting affidavit.
For the format and suitable wording for a claim for reasonable provision and permission to apply out of time see Atkin's Court Forms, Probate and Family Provision Vol 29(1) Form 138.
It would be prudent for the practitioner to consider the guidelines with a view to satisfying as many of them as he can in the affidavit in support.
An application for provision should not be made before the grant. The application can be so made but a practical difficulty may well be ascertaining who the personal representatives are or may be. Assuming they can be ascertained the action may still be struck out as being premature. There are conflicting judgments.
In Re Searle (deceased); Searle v Siems and Others [1948] 2 All ER 426 (heard under the 1938 Act) the claim was filed almost two months before the Grant was first taken out. Despite the fact that this was described as “a blunder…fatal to the plaintiff's claim” Roxburgh J went on to declare: “That any blunder of that sort should completely and finally deprive a litigant of recourse to the court would challenge the foundations of natural justice.”
His Honour then proceeded to liberally interpret the provisions of s 2 of the 1938 Act (which closely mirrors the provisions of s 4 of I(PFD)A 1975) to enable the application to proceed. However, he did, interestingly, describe such a form of application as “an experiment”.
It could be that His Honour's suggestion that the experiment should be tried again was taken up in the case of Re McBroom deceased [1992] 2 FLR 49. In this instance the application failed and it was made clear that there must first be a Grant. However, this could be distinguished in that, unlike Re Searle, there was still no Grant at the date of the hearing.
The safest course would appear to wait for the Grant by issuing a standing search or force the issue by citation, assuming the potential applicant has a right, or by an application under s 116 Supreme Court Act 1981.
There may be more than one potential applicant. An application in time by one of them does not carry the other applicants, all of whom would be required to make their own timely applications or apply for an extension under s 4. It would seem unlikely that an out of time application would be refused if there was an extant in time application.
It is not clear whether an application for an interim order under I(PFD)A 1975 can be made prior to a Grant but it would seem doubtful. In such a circumstance a grant under s 116 Supreme Court Act 1981 may again be the preferred course.
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