Lonan Daniel O'Herlihy v Jennifer Mary Taylor & Anor

Permission under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 is an unfettered but judicial discretion. The applicant must establish a substantial case for extension of time, including a real, rather than fanciful, prospect of success on the substantive claim. The court must weigh all the circumstances and the Berger factors, giving each appropriate weight.

The section 4 power is directed to the proper administration of estates and the making of reasonable financial provision. It is not a disciplinary or sanctions jurisdiction. A real prospect of success does not automatically justify permission. For an adult applicant seeking maintenance, need is necessary but insufficient. In assessing maintenance, the court considers the applicant’s resources, earning capacity, debts and appropriate standard of living, together with the deceased’s obligations and responsibilities existing at death.

The claimant sought permission to bring an application under section 1(1)(d) of the Inheritance (Provision for Family and Dependants) Act 1975 more than four years after the six-month period in section 4 had expired. He alleged that the deceased had treated him as a child of the family and that the 2015 Will made no reasonable financial provision for his maintenance.

The estate, valued at more than £38 million for probate, had been fully administered and distributed. The defendants disputed the claim, although the first defendant conceded for the preliminary issue that the claimant had an arguable case as a child of the family during part of his childhood. The court determined whether the claimant had a real prospect of success and, if so, whether the circumstances justified extending time.

1. Applicable approach. The court adopted the seven propositions distilled in Berger v Berger and endorsed in Cowan v Foreman. The discretion under section 4 is unfettered but must be exercised judicially. The applicant bears the burden of showing sufficient grounds. The court must consider promptness, negotiations, distribution of the estate, alternative remedies and the merits of the proposed claim, viewed in the circumstances existing at the hearing.
2. Merits threshold. The claimant had to show a real prospect of success, rather than a fanciful prospect, on the substantive claim. The court should not entertain an out-of-time claim with no merit merely because delay was explicable and prejudice was limited. Conversely, passing the summary-judgment threshold did not require permission to be granted.
3. Substantive claim. The claimant had a real prospect of establishing that he was treated as a child of a family in which the deceased stood in the role of a parent. However, there was no real prospect of establishing that the deceased owed him obligations or responsibilities at death. The claimant was an economically independent adult, capable of earning sufficient income for his appropriate standard of living, although he had substantial debts.
4. Maintenance. The claimant’s earlier affluent lifestyle and expectations of inheriting the deceased’s business did not establish the level of maintenance reasonably required at death. The deceased’s past support had ended in about 2012, several years before his death. The claimant’s alleged expectations did not amount to current obligations or responsibilities within section 3(1)(d).
5. Discretion. Even assuming that the substantive claim had a real prospect of success, the claimant’s delay after learning of the possible claim was substantial and insufficiently justified. The estate had been distributed, the claimant had not negotiated within the statutory period, and the first defendant had suffered more than merely formal prejudice, including repeated disruption caused by the revival of an apparently abandoned claim. Those factors outweighed the possible absence of another remedy.
6. Evidence and privilege. The 26 June 2023 letter was a genuine attempt to settle contemplated litigation, but its threats of publicity fell within the narrowly construed exception for blackmail or unambiguous impropriety. In any event, privilege had been waived by the claimant’s references to the correspondence and by reliance on its contents.
7. Disposition. The court held that the claimant had no real prospect of success on the substantive claim. Alternatively, permission would have been refused even on the assumption that he did. Permission under section 4 was refused.