Bringing a claim as soon as possible shows the court you are on the case

How long is too long for claiming under the Inheritance (Provision for Family and Dependants) Act 1975 was an influential factor in the recent case of Berger v Berger. A property tycoon's widow, Rosana Berger, sought a greater income from her late husband's £7.5m estate having waited nearly six and half years after the six-month deadline. Her application failed even though the Court of Appeal had no doubt that she had an arguable case on merit.

The Berger case struck a chord with me because I was involved in a case where the claimants (minors lacking capacity) brought a successful claim six and a half years out of time. And in Re McNulty Deceased, the strength of a widow's claim made three and a half years after deadline influenced the court. So why did Rosana fail?

Although the substantial delay was overwhelming factor, it did not stand alone. Soon after her husband's death, Rosana took advice from two sets of reputable solicitors, who didn't mention her right to claim under the Act. She was made aware in October 2011 but only started proceedings in June 2012. Rosana Berger hesitated because she was reluctant to engage in litigation with her stepsons and genuinely believed that the matter could be resolved without issuing a claim.

Acting with urgency

The golden rule is if your client consults you after the six-month period, act with urgency. The time limit is very short - even if instructed early. Before looking at the factors, the court may assist to look at the wider picture and consider why the time limit exists. The reason is because personal representatives and beneficiaries need certainty.

Personal representatives should not distribute an estate before the six-month time limit expires. If they do, they lose the protection of section 20. However, it is best practice to wait a further four months in case a claimant has issued but not yet served a claim.

The court's discretion is unfettered. It is to be exercised judicially in accordance with what is just and proper. And the onus is on the claimant to establish sufficient grounds as to why a claim should be allowed out of time. Re Salmon is the leading case that laid down what the court should look at on an application:

• How promptly did the claimant act and in what circumstances after the time limit expired?
• Did negotiations commence within the time limit?
• Has the estate been distributed?
• Would a refusal to extend time leave the claimant without redress against another party?

Before Berger, the more modern approach was to focus on the merits of the claim, which was stressed in Re Dennis shortly after the decision in Re Salmon. However, the merits were not sufficient for Rosana Berger because the delay was just too long and the reasons for that delay not persuasive.

If practitioners are instructed shortly before the deadline or after it has expired, the most risk-averse action is to issue an application for permission. When delay is inevitable for another reason, such as there being ?other claims that need to be determined, it's preferable to issue proceedings then apply ?to have them adjourned rather rely on obtaining an extension.

Standstill agreement

Common practice in contentious trusts and estates ?is entering into a standstill agreement with all parties. This has the effect of preventing proposed defendants from pleading or relying on any passage of time between the date of the standstill agreement and the issue of proceedings. It does not suspend the limitation period or mean that the courts will automatically grant an application for permission to apply out of time.

Finally, there are costs. Most claimants under the Act are impecunious so the extra costs of issuing proceedings create a real burden. Legal fees are perhaps better channelled towards pursuing a settlement of the matter, but that is not always possible. Therefore proceedings often have to be issued. Despite the post-Jackson world, it is still possible to bring a claim under the Act under a conditional fee agreement and obtain after the event insurance, which protects the client from the risk of adverse costs.

The moral of Berger is: find ?the right lawyers as quickly as possible and, however sad it ?may be, do not assume that ?your opponents will do the ?right thing. SJ

Julia Burns is a solicitor at ?Irwin Mitchell

www.irwinmitchell.com