O'Herlihy v Taylor: court refuses late inheritance act claim after four-year delay

The High Court has refused permission to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 nearly five years after the six-month statutory deadline, finding both that the substantive claim lacked real prospects of success and that, even had it possessed them, the balance of discretionary factors weighed against extending time.

The claimant, Lonan O'Herlihy, was the younger son of a woman who had been in a relationship with the deceased, Hugh Taylor, from approximately 1995 to 2004. Taylor died on 2 June 2019, leaving an estate sworn at £38.5 million. His 2015 will left the residue entirely to his widow, Jennifer Taylor. O'Herlihy received nothing and applied under s.1(1)(d) of the Act as a person treated as a child of the family. The grant of probate issued on 1 November 2019; the six-month period under s.4 therefore expired on 1 May 2020. The claim form was not issued until 14 October 2024.

The s.4 framework

Deputy Master Henderson applied the well-established Berger v Berger [2013] EWCA Civ 1305 factors, as endorsed and contextualised by Asplin LJ in Cowan v Foreman [2019] EWCA Civ 1336. The court confirmed that s.4 carries no disciplinary purpose and exists primarily to protect personal representatives and beneficiaries from the complications of tardy proceedings. Staleness, in the limitation sense, is of limited relevance. Permission nevertheless requires the applicant to make out a substantial case that extension is just and proper.

Substantive prospects

The first defendant conceded, for the purposes of the s.4 hearing only, that the claimant had an arguable case under s.1(1)(d) for the period approximately 1996 to 2002. The court accepted that a real prospect existed of establishing treatment as a child of the family during the years the deceased and the claimant's mother cohabited. The principal difficulty lay elsewhere.

Applying Ilott v Blue Cross [2017] UKSC 17 and Miles v Shearer [2021] EWHC 1000 (Ch), the Deputy Master held that the claimant had no real prospect of establishing either that the deceased owed him obligations or responsibilities at the date of death (s.3(1)(d)), or that the appropriate benchmark for assessing his needs was the affluent standard of living he had enjoyed before 2012. All financial support had ceased approximately seven years before the deceased died. By 2012 or 2013, O'Herlihy had known he would receive nothing, had re-trained as a personal trainer, and was earning an income sufficient for his self-created standard of living. This was not a case, unlike Ilott, of very straitened circumstances or real poverty capable of counterbalancing the absence of current obligations.

The discretionary factors

On the assumption, in the alternative, that a real prospect of success existed, the court still declined to extend time. The delay was substantial and inadequately explained. O'Herlihy did not learn of the possibility of a 1975 Act claim until instructing Farrer & Co in summer 2022, but once aware, failed to act promptly. No claim was issued for a further two years. The court found that conditional fee funding had likely been available from early 2023, and that an interim application under s.5 had been another unexplored option.

The estate had been substantially distributed before any 1975 Act claim was intimated. The first defendant had reasonably believed on at least two occasions that the matter was concluded. The court identified three forms of prejudice: the psychological impact of having distributed assets reclaimed, repeated disillusionment of settled expectations, and the burden of continuing litigation more than six years after bereavement.

The claimant's credibility was also a factor. The Deputy Master found his evidence on several points to have been literally true but misleading, and noted a pattern of presenting favourable impressions rather than candid accounts.

Permission under s.4 was refused on both the principal ground of no real prospect of success and, alternatively, on the exercise of discretion.

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