Cowan v Foreman & Ors

Permission to bring a claim outside the six-month period under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 requires an evaluation of all relevant circumstances and the established Berger factors. The jurisdiction has no disciplinary element, and a satisfactory explanation for every period of delay is not invariably required.

A substantive claim must have a real, rather than fanciful, prospect of success. That threshold is necessary but not sufficient. Negotiations, including those begun after expiry, may favour an extension. A standstill agreement cannot bind the court but may carry substantial weight. Whether an estate has been distributed is important but not decisive. Provision through discretionary or defeasible trusts must be assessed factually; outright provision is neither invariably required nor inherently unarguable.

The appellant widow sought permission under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to pursue a claim for reasonable financial provision nearly 17 months after the statutory period expired. Her late husband’s estate exceeded £29 million. She received nominal chattels outright, while her principal provision consisted of discretionary and defeasible trust interests, including an interest relating to her home.

Mostyn J refused permission in [2019] EWHC 349 (Fam). He held that the substantive claim was unarguable and that there were no good reasons for substantial parts of the delay. The widow appealed, challenging his approach to the statutory discretion, the merits threshold, negotiations and a standstill arrangement, distribution of the estate, and the explanation for delay.

The central questions were how section 4 should be exercised and whether, applying the correct approach, permission should be granted.

1. Appeal allowed. The judge had adopted an erroneous disciplinary approach to section 4 of the Inheritance (Provision for Family and Dependants) Act 1975. The statutory power exists principally to avoid unnecessary delay in estate administration and complications arising from distributions. It is not designed to protect the court or beneficiaries from “stale claims”, and relief-from-sanctions principles do not govern its exercise.

2. The applicant must establish a substantial case for permission. The court must evaluate all the circumstances and the factors identified in Berger v Berger [2013] EWCA Civ 1305. A good reason for every part of the delay is not an indispensable condition. Depending on the strength of the claim and the other factors, permission may be appropriate despite some unexplained or inexcusable delay.

3. The proposed substantive claim must have a real rather than fanciful prospect of success. A claim failing that summary-judgment threshold should not proceed merely because delay is explained and no prejudice exists. Passing the threshold does not itself justify permission; the remaining circumstances must still be weighed.

4. The widow’s claim was arguable. The judge had speculated about the deceased’s motives and had focused on whether those intentions were reasonable, rather than whether reasonable financial provision had arguably been made. He also failed properly to consider the estate’s size, the long relationship, the widow’s lack of outright assets, autonomy and security, and the defeasible nature of her trust interests. A claim for outright provision did not amount to forced spousal heirship. Whether trust provision is reasonable is fact-sensitive. The unenforceable letter of wishes could not be assumed to be followed in every circumstance, nor would departure from it necessarily constitute an actionable breach of trust.

5. The delay was adequately explained. The widow acted promptly after understanding her true position and receiving substantive advice. Negotiations and mediation conducted after expiry were significant positive factors. A standstill agreement cannot bind the court, but legally represented parties may agree one while pursuing settlement. King LJ added that it should be clear, written, time-limited and include every potential party; any later proceedings should be accompanied by a consent application for permission.

6. The partial payment of legacies and constitution of the trusts carried little weight given the estate’s size and nature. Distribution is important but not decisive. Prejudice to other beneficiaries and any alternative professional-negligence remedy did not outweigh the factors favouring an extension. The Court of Appeal exercised the section 4 power itself and granted permission to commence the claim out of time.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 1336, the court allowed the widow’s appeal, set aside the refusal below and granted permission under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to commence proceedings out of time.
2. High Court (Family Division): Mostyn J, in [2019] EWHC 349 (Fam), refused permission. He considered the substantive claim unarguable and found no good reason for substantial periods of delay.