How long do I have to make a claim if I have been left out of a Will? The courts show some flexibility
If you are left out of a Will of a deceased person who you expected to provide you with financial support, you may be able to bring a claim under what is known as the “Inheritance Act” (or to give it its full name, the Inheritance (Provision for Family and Dependants) Act 1975)).
There are strict deadlines under the Inheritance Act for commencing court proceedings which people often miss and find they are unable to pursue a claim. The time limit to start court proceedings for an Inheritance Act claim is generally six months from the date of the Grant of Probate or Grant of Letters of Administration. This is intended to enable executors / administrators to get on with distributing the estate promptly without having to worry about claims from disappointed dependants.
However, the Court of Appeal has shown some flexibility over this deadline in the recent case of Cowan v Foreman  EWCA Civ 1336 (Cowan). It was held that this six-month period could be extended even if there was no good reason for delay, as long as the applicant can show sufficient grounds for the grant of permission.
In Cowan, the applicant commenced the court case seeking financial provision outside of the six-month period. The applicant was the wife of the deceased, who had left an estate of £29m when he died in April 2016. Under the Will the wife was made the main beneficiary of two trusts with a life interest in the residue of the estate. The wife required knee surgery in October 2017 but the trustees questioned her medical expenses. The wife therefore wished to apply under the Act for outright testamentary provision. The limitation period had technically already expired in June 2017. Following discussions between the applicant and the trustees, the application was eventually made out of time in November 2018.
Mr Justice Mostyn at first instance denied the wife’s application on the basis that an application under the Act required the applicant to have an arguable claim with good reason to justify the delay. The judge held the claim was not arguable (as the applicant had generous trust arrangements) and she did not have a good reason to justify the delay.
On appeal, it was held Mostyn J wrongly applied a ‘disciplinary approach’ to the interpretation of the Act and ‘although the applicant must put forward a substantial case, that it is not necessarily true that there must be a good reason for all delay in every case… each case turns on its own facts’. It was held that an application for financial provision under the Act was in fact designed to avoid unnecessary delay in the administration of estates - not to deter expired applications away from the courts. The wife was granted permission to apply outside of the limitation period due to the reasonable explanation for the delay and the fact her claim had a real prospect of success.
However, it is very risky to rely on the court’s discretion and claims should normally be asserted within the time limit or as soon as possible thereafter. If you think you may have a claim when you have been left out of a Will (or if you missed out because there was no Will) you should speak to a solicitor as a matter of urgency or you may lose any right to bring a claim.
If you want to make a claim under the Inheritance Act, but are not sure if you are out of time, please contact us here where one of our specialist family law solicitors can advise you.
Articles are intended as an introduction to the topic and do not constitute legal advice.