Sargeant v Sargeant & Anor

Permission to bring an application under the Inheritance (Provision for Family and Dependents) Act 1975 after the six-month limit is discretionary and must be exercised judicially, having regard to all relevant circumstances. The claimant must show a sufficient case for allowing the application to proceed and must establish an arguable substantive claim. Relevant matters include the length and explanation of the delay, negotiations, the distribution and continuing status of estate assets, and any alternative remedy. Long delay will ordinarily weigh heavily where the claimant understood the relevant financial position, received advice about available options, and chose to continue with existing arrangements. The absence of advice specifically about an inheritance claim does not necessarily justify permission where the claimant was advised to obtain independent advice and failed to do so.

The claimant was the widow of the deceased and sought permission to make a claim under section 2 of the Inheritance (Provision for Family and Dependents) Act 1975, more than ten years after probate. The deceased’s will placed most of his assets in a discretionary trust for the claimant, his daughter and her issue. The claimant alleged that the arrangements failed to provide her with sufficient income and that she had not understood her position.

By consent, permission was determined as a preliminary issue on written evidence. The central questions were whether the claimant had an arguable claim and whether, applying the discretionary factors governing applications out of time, it was right and just to permit the claim to proceed.

1. Permission refused. The claimant had an arguable claim, but had not shown a sufficient case that it was right and just to permit proceedings issued more than ten years after the grant of probate.
2. The discretion under section 2 of the Inheritance (Provision for Family and Dependents) Act 1975 is unfettered but must be exercised judicially. The factors identified in Re Salmon [1981] Ch 167 were relevant, including the exceptional nature of proceeding out of time, the promptness and explanation of delay, negotiations, the distribution of the estate and any alternative remedy. The court also had to consider whether the proposed claim was sufficiently arguable to survive summary judgment, applying Re Dennis [1981] 2 All ER 140.
3. The claimant’s evidence and the contemporary documents showed that she understood, or at the latest understood by 2011, that the assets were held through a discretionary trust, that she had only a fixed income, and that further cash depended on increased partnership payments, rent or the sale of estate assets. She repeatedly chose to continue within those arrangements.
4. The claimant’s failure to receive specific advice about a possible claim under the Act did not adequately explain the delay. She had been advised that the trustees’ solicitor acted for the trustees and that she should obtain separate advice about her personal position. The case involved no concealment, misleading conduct, supervening event or other circumstance outside her control.
5. The fact that estate assets remained available did not outweigh the very extensive delay and the legitimate expectation of the trustees and beneficiaries that the will arrangements would continue. The court made no determination on the claimant’s proposed alternative claims.

The proceedings were issued in the High Court on 20 July 2016. By consent order dated 21 August 2017, District Judge O’Regan directed that permission to proceed out of time be determined as a preliminary issue on written evidence. The High Court refused permission.