Hendry v Hendry & Ors

Permission to bring an application under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 out of time requires substantial grounds. The discretion is unfettered but must be exercised judicially. The applicant bears the burden of justification.

The court must consider the whole circumstances, including promptness, the reasons for delay, negotiations within the limitation period, distribution of the estate, alternative remedies and whether the proposed claim is arguable. The six-month limit is substantive, not merely procedural. An arguable claim and an undistributed estate do not, without more, justify permission.

The claimant, the estranged widow of the deceased, sought permission under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to bring a claim for reasonable financial provision from his estate. Probate had been granted more than six months before the Part 8 claim was issued.

The claim was opposed by two beneficiaries. The executor was later joined and adopted a neutral position. The claimant relied on negotiations, impecuniosity and an arguable claim. The central issues were whether sufficient grounds existed for extending time, whether negotiations had begun within the limitation period, and whether the claimant had acted promptly.

1. Permission refused. The claimant had not shown sufficient grounds under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 for bringing the claim out of time.
2. The applicable principles were those stated in Berger v Berger [2013] EWCA Civ 1305, refining the guidance in Re Salmon [1981] Ch 167 and Re Dennis [1981] 2 All ER 140. The discretion was unfettered but had to be exercised judicially. The claimant bore the burden of showing sufficient grounds. The court had to consider promptness, the circumstances of delay, negotiations, distribution of the estate, alternative remedies and whether the proposed claim was arguable.
3. The six-month time limit was substantive rather than procedural. Negotiations in a technical sense had taken place, but they did not amount to adequate negotiations because the claimant had not set out a considered analysis of her claim or the provision sought.
4. The claimant’s delay was inadequately explained. Her solicitors knew of the limitation period, failed to issue a protective claim promptly after discovering the default, and failed to keep the defendants informed. The fact that the estate remained undistributed did not eliminate prejudice.
5. The claimant had an arguable claim as an estranged spouse. However, it was not a strong claim. The prenuptial agreement, entered into with separate legal advice and intended to govern the financial consequences of separation, was relevant and had to be given weight.
6. Refusal of permission would not leave the claimant without recourse. On the evidence, she appeared to have potential contractual and negligence claims against her solicitors.
7. Under CPR 3.1 and CPR 3.1(m), the court had power to permit supplementary evidence addressing the unexplained delay. That case-management step was justified because the section 4 decision was fundamental to the parties.