Cowan v Foreman & Ors

Permission to bring a claim out of time under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 requires a qualitative assessment of two matters: whether the claimant has shown good reasons for the delay and whether the proposed claim has sufficient merit to justify a trial. The latter requirement is satisfied only where the claim has a real prospect of success. A generous trust arrangement may constitute reasonable financial provision; the legislation does not create an entitlement to outright testamentary provision for a surviving spouse. Privately agreed standstill arrangements do not stop the statutory clock or ordinarily constitute good reasons for delay. Substantial delay, absent highly exceptional circumstances, will generally defeat permission.

The claimant sought permission under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to make a substantive claim under section 2 against her deceased husband’s estate. Probate was granted on 16 December 2016, so the six-month period expired on 16 June 2017. The application was issued on 8 November 2018.

The claimant contended that the testamentary trusts did not provide her with reasonable financial provision because she lacked outright ownership and security. The defendants relied on the substantial delay, the claimant’s knowledge of the time limit, and the provision made through the trusts. The issues were whether there were good reasons for the delay and whether the proposed claim had a sufficient prospect of success to proceed.

1. The application for permission was dismissed. The claimant failed both limbs of the applicable test.

2. Section 4 was not properly characterised as conferring an unfettered discretion. The court had to make a qualitative or value judgment, based on the relevant facts, as to whether the delay was justified and whether the proposed claim had sufficient merit. The second limb imported the summary judgment standard in CPR 24.2: the claimant had to show a real prospect of substantive success.

3. The statutory time limit protects the orderly administration of estates, beneficiaries and the court from stale claims. The factors identified in Berger v Berger [2013] EWCA Civ 1305 remain relevant, but they operate within the two-limb assessment. The claimant had been informed of the will’s structure and of the six-month limit. The periods of delay, taken together, amounted to 13 months and were not justified. In the modern era, absent highly exceptional circumstances, excusable delay should ordinarily be measured in weeks or at most a few months.

4. A privately agreed moratorium cannot suspend the statutory time limit or transfer to the parties a period belonging to the court. Where negotiations are pursued, the claim should be issued in time and an application made for a stay. The period covered by the purported moratorium was exceptionally ignored on the facts, but the later delay was not excused.

5. The claimant’s argument that lack of outright ownership itself demonstrated unreasonable provision was rejected. The 1975 Act does not impose forced spousal heirship. A testator may make generous provision through trusts, provided the evidence supports the conclusion that the trustees will meet the claimant’s reasonable needs. The evidence did not show that the trustees would refuse to honour the deceased’s wishes or that the proposed claim had a real prospect of success.

6. Permission to appeal was refused because the proposed grounds disclosed neither a real prospect of appellate success nor a good reason for an appeal.

First-instance decision. The judgment records that permission to appeal was sought after the draft judgment and refused by Mr Justice Mostyn.