JULIE DAWN COLBOURNE v SIMON MARK COOKE & Ors

Under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975, the court has an unfettered discretion to permit an Inheritance Act claim after the six-month period. The Act does not prescribe the procedural form of the application. Failure to follow conventional practice is not, without more, a jurisdictional bar.

The discretion must be exercised judicially and in accordance with the interests of justice. Relevant considerations include promptness, negotiations, whether the estate has been distributed, prejudice, alternative remedies and the arguable merits. A possible negligence claim against solicitors does not necessarily outweigh the applicant’s prejudice. The court should not conduct a mini-trial where disputed facts require determination at trial.

The applicant sought permission to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 after expiry of the six-month period following the grant of probate. The application was made by application notice before the intended Part 8 claim form had been issued.

The respondent argued that the court lacked jurisdiction because the application had not been included in an issued claim form, contrary to established practice. The applicant contended that section 4 imposed no procedural requirement and that the court could determine the application. The central issues were whether the court had jurisdiction and, if so, whether permission should be granted.

1. Jurisdiction. Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 gives the court an unfettered discretion to permit an application after six months. It does not prescribe the manner in which the application must be made. Although the conventional practice was to seek permission in the issued claim form, failure to follow that practice did not deprive the court of jurisdiction or require dismissal.
2. The application had been issued by the court, listed for hearing and supported by the intended claim form and evidence. The respondent had suffered no material prejudice and had been able to respond. The overriding objective supported determining the application rather than requiring further proceedings and expense.
3. Extension of time. The discretion had to be exercised judicially and in accordance with what was right and proper. The court applied the seven considerations identified in Berger v Berger. The applicant had acted sufficiently promptly after the error was discovered; negotiations had taken place; the estate had not been distributed; and refusal would leave the applicant with only a materially different claim against her solicitors.
4. A potential negligence or loss-of-chance claim against solicitors was relevant but was not a counterbalance to the other circumstances. Treating it as decisive could produce a windfall for the respondent and prejudice the applicant.
5. The merits were considered only to the extent necessary to determine whether there was an arguable claim. The court was not deciding the substantive Inheritance Act claim and should not conduct a mini-trial where disputed factual issues required evidence and cross-examination. The applicant had shown a real prospect of success and therefore an arguable case.
6. The estate’s non-distribution and the minimal prejudice to the respondent outweighed the delay and procedural default. Permission to bring the claim out of time was granted.

First-instance decision. No prior appellate history was stated in the judgment.