Better late than never? Can you bring an Inheritance Act claim after 6 months?

Better late than never? Not always. Former Made in Chelsea star Lonan O’Herlihy learnt this the hard way in his attempt to persuade the Court to permit him to bring a claim over 4 years after the usual limitation period had expired.

Hugh Ian Taylor, who had previously been in a relationship with Lonan’s mother between 1995 and 2004, died in June 2019. Hugh left his £38.5 million estate to his residuary beneficiary (and partner) Jennifer, with nothing being put aside for Lonan.

Earlier this year, Lonan sought permission from the Court to bring a claim against the estate, having missed the usual 6-month deadline by more than 4 years. Lonan alleged that Hugh had financially supported him and treated as “a child of the family” during Hugh’s and his mother’s relationship.

Even though the Court has the power to permit an out-of-time claim, it chose not to on this occasion. Georgia Barber, solicitor in our dispute resolution team, explains the reasons why. 

What type of probate claim was Lonan trying to bring?

Lonan sought to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (Inheritance Act) for reasonable financial provision to be made from Hugh’s estate on the basis that Hugh had financially supported him during Hugh’s relationship with his mother.

A claim under the Inheritance Act is one of the most common types of contentious probate claims and allows eligible applicants to bring a claim for reasonable financial provision to be made for them out of the deceased’s estate in circumstances where the applicant alleges that the deceased’s will has not made reasonable provision for them and it ought to have done.

Eligible applicants for an Inheritance Act claim include spouses/civil partners, former spouses civil/partners, cohabitees, children and stepchildren (including adult children), and anyone who was financially maintained by the deceased prior to the deceased’s death.

For Inheritance Act claims, the time limit for bringing a claim is 6 months from the date the Grant of Probate has been issued.

Can you bring an Inheritance Act claim after the 6-month deadline?

Unfortunately for executors who may think they are in the clear after 6 months, Inheritance Act claims can be brought long after the 6-month limitation period has expired.

Under section 4 of the Inheritance Act, the Court has an unfettered discretion to permit an out-of-time claim to be made if it considers it just to do so.

When determining whether it is just to permit the claimant to bring the out-of-time claim, the Court will consider the following factors.

What was the reason for the delay?

What was the reason for, and how long was, the delay? Was the claimant justified in missing the deadline?

If the Court considers the reason for the delay to be justifiable, it may be more likely to permit an out-of-time claim. For example, in Lonan’s case, part of the delay in bringing his claim was caused by the fact that he was not made aware by his solicitor at the time that he could bring an Inheritance Act claim. The Court may find this a more justifiable reason for delay in comparison to a claimant who knew about their claim but failed to take steps to bring their claim within the 6-month period.

Did the claimant act promptly after realising the deadline had passed?

The Court is likely to look more favourably on a claimant who moved quickly to bring their claim after realising the deadline had passed. In Lonan’s case, the Judge found that after Lonan became aware that he could bring an Inheritance Act claim, he (and his advisors) did not act promptly enough to bring the claim. Indeed, it took 6 months from Lonan becoming aware that he could bring a claim for his solicitors to send a formal letter before the claim.  

What is the strength of the underlying claim?

Does the claimant have a real prospect of success? Does the claimant have a clear ongoing requirement for financial maintenance?

For the claim to have a real prospect of success, the claimant must be able to demonstrate:

1. That they are an eligible applicant.
2. That the deceased’s estate fails to provide reasonable financial provision for their maintenance.

When considering what is reasonable, the Court will take into account the following factors:

1. The applicant's current and future financial resources and needs.
2. The financial resources and needs of other applicants and beneficiaries.
3. Any obligations or responsibilities the deceased had toward the applicant or beneficiaries.
4. The overall size and nature of the net estate.
5. Any physical or mental disabilities of the applicant or beneficiaries.
6. The conduct of the applicant or any other relevant person.

What is the status of the estate distribution?

If the estate assets have already been distributed, would it prejudice the recipient beneficiaries by forcing them to return the assets?

Distribution of the estate is not a shield to an out-of-time claim. The Court has the power (if it considers it just to do so), to unwind the distribution of the estate. The Court will consider whether it would prejudice any beneficiaries who are already enjoying the assets by forcing them to return the assets. For example, the Court may consider it unjust to force beneficiaries who have been enjoying assets that were distributed to them several years prior.   

Have the parties actively engaged in settlement negotiations or agreed to a standstill agreement before the deadline had expired?

Permission to bring an out-of-time claim is not guaranteed and unfortunately for Lonan, permission was refused on the basis that:

• The Court found that the delay in bringing the claim was significant and unjustified
  The claim did not have a realistic prospect of success given that:
  • Hugh’s relationship with Lonan’s mother ended around 2005 and Lonan ceased all contact with Hugh by 2012.
  • Hugh had not provided any financial support to Lonan during at least the final seven years of his life.
  • Lonan was financially self-sufficient and could not demonstrate that he needed reasonable financial provision from the estate.  

What does O’Herlihy v Taylor mean for Inheritance Act claims?

The reasons for the delay in bringing Lonan’s claim were complicated partly by (i) the fact (at first) he was not made aware that he could bring an Inheritance Act claim; and (2) his inability to pay his legal fees, which caused delays with preparing documents and progressing the claim.

However, the Court’s assessment was clear that, regardless of the reasons for the delays, Lonan had not acted promptly enough to bring his claim once he was made aware that he could bring one, nor had he/his solicitors acted promptly enough when his financial situation had been resolved.

Whilst Lonan’s application failed on other fundamental grounds, the judgment serves as an important reminder that potential claimants must act sharply to seek advice and to prepare and issue their claim in good time before the limitation period expires. Relying on the Court’s discretion to permit an out-of-time claim is an extremely risky strategy and should happen as a last resort.

If you think you might have an Inheritance Act claim, but you are unsure whether you are eligible or whether your claim may be within or out of time, please contact Georgia Barber at [email protected].

Read the full judgment.