The six-month deadline: how to overcome the time limit for bringing an Inheritance Act Claim

The Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”) allows certain categories of individuals to make a claim against the estate of a deceased person if the disposition of the estate (whether by will or intestacy) does not make reasonable financial provision for them.

Are there time limits for contesting a will under the 1975 Act?

Yes, there are time limits for contesting a will under the 1975 Act. The application must be made within six months of the date of the grant of probate or letters of administration.

Can I still make a claim after this six-month period?

Yes, it is possible to make a claim after the six-month period, however applications made after this period require permission of the court to progress.

The court will make a decision on whether to allow the application out of time and will consider each case on its own merit.

If I am out of time, what will the court consider when deciding whether to allow my claim to proceed?

If you are out of time, the court will consider various factors when deciding whether to allow your claim to proceed including. These are often referred to as ‘the Berger Guidelines’, anemly:

• whether you acted promptly in bringing your claim after the expiration of the 6 month time limit;
• whether negotiations commenced within the time limit;
• whether the estate has been distributed before the claim was notified to the defendants;
• whether dismissal of the claim would leave you without recourse to other remedies; and
• whether you have an arguable case;

You should be prepared to demonstrate and provide evidence in support of your position under each of these heads.

If the estate has already been distributed, will this affect the prospects of successfully?

If the estate has already been distributed this will generally work against your application as there is a greater chance that the delay will prejudice the interest of the parties that have already received distributions from the estate.

How does the court determine whether I have an arguable case?

The court will consider and weigh up any evidence you put forward in connection with your financial resources and needs as well as evidence presented by any opponent to your application.

The court should not, however, conduct a “mini-trial” on disputed facts. Instead, it must simply be satisfied that there is a triable issue. However, if a clear view of the merits can be formed, it can take that into account

What are the specific circumstances under which the court may refuse an extension for my 1975 Act claim despite my claim having merit?

Even if your underlying 1975 Act claim has strong merits, a court can refuse an extension in circumstances where the other Berger Guideline principles have not been met. The case from which the Berger Guidelines derive (Berger v Berger [2013]) helps to illustrate such  a situation.

In Berger v Berger, leave was refused despite a strong arguable case in light of extensive delay (of six years) from grant, without sufficient explanation for the reason the application being made when it was.

How we can help

If you are out of time to bring your claim, please get in touch and we can provide you with advice on the merits of your application, how to push for the affected parties to consent to an application being made out of time and/or with presenting your case to the court in the best possible terms.