A deepening maze: permission granted to begin Inheritance Act claim after nearly 26 years’ delay in unusual High Court ruling

Posted: 14/03/2019

Hot on the heels of the decision last month by Mr Justice Mostyn to refuse an applicant permission to apply 17 months out of time under the Inheritance (Provision for Family & Dependants) Act 1975 and his criticism of parties agreeing standstill agreements (Cowan v Foreman and others [2019] EWHC 349 (Fam)), Chief Master Marsh last week gave an applicant permission to begin a claim under the 1975 Act after nearly 26 years’ delay (Bhusate v Patel and others [2019] EWHC 470 (Ch)).

The facts of Bhusate are very different from those in Cowan but both involved claims by widows. Bhusate is particularly extraordinary as prior to that case the longest delay previously allowed was 5 years and 5 months, and prior to that, 3 years and 7 months.

In Bhusate the applicant was the deceased’s third wife. He died intestate in 1990 and so his estate was divided between her and his children. The applicant and first defendant took out a grant of letters of administration on 12 August 1991. For the applicant to receive her share of the estate, a property would have to be sold. Although it was put on the market in 1990, it failed to sell and no other steps were brought by the applicant or first defendant to administer the estate.

In November 2017 the applicant issued various claims including proprietary claims in relation to the property, a claim for payment of her statutory legacy and permission to bring a claim under the 1975 Act. The application for permission was held over but her other claims were struck out and both she and the first defendant were removed as administrators.

Chief Master Marsh granted her permission to bring proceedings under the 1975 Act on the grounds that:

• the merits of her claim were very strong;
• the delay had been explained and she was unable to do anything without the agreement of her stepchildren;
• the stepchildren had obstructed the sale of the property and did nothing to break the impasse;
• if permission was not granted, she would have no other remedy and would be left homeless.

The facts are clearly unusual and all cases are fact specific.

However, for the private client lawyer, advising on the merits of an application for permission to bring a claim under the 1975 Act out of time has become an almost impossible task.  On the one hand Mr Justice Mostyn says that a delay of 17 months is intolerable, on the other Chief Master Marsh says that 25 years and 9 months is acceptable.  Perhaps a decision from the Court of Appeal is needed to try to clarify the law in this area?

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