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Jamie Randall discusses the recent judgment handed down in Cowan v Foreman and Ors [2019] EWHC 349 (Fam)

On 25 February 2019, Mr Justice Mostyn handed down his judgment in Cowan v Foreman & Ors (FD18F00079), which concerned a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

The Claimant was the wife of the Deceased. Probate of his will was granted on 16 December 2016. This did not make outright provision for the Claimant, but made her the principal beneficiary of two discretionary trusts, under which she received a regular monthly payment of $17,250 (subsequently increased to $26,250).

Section 4 of the 1975 Act provides that a claim cannot be made more than six months after probate has been granted, save with the permission of the court. The claim form was issued on 8 November 2018 – 17 months after the limitation period had expired. Mostyn J begrudgingly accepted that the relevant delay was only 13 months, as a result of a stand-still agreement between the parties. He cast serious doubt, however, on the efficacy of such agreements: “I was told that to agree a stand-still of this nature is “common practice”. If it is indeed common practice, then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court.”

Mostyn J identified two fundamental questions for the court to consider on an application to issue a claim out of time: (1) are there good reasons for the delay; and (2) does the claim have sufficient merit to be allowed to proceed to trial.

With regard to question one, he concluded that there was no justification for this substantial delay and that the “limit of excusable delay should be measured in weeks, or, at most, a few months”.

With regard to question two, he applied the test for summary judgment (as it was agreed he should) and determined that the Claimant had no real prospect of success since she was well provided for by the trusts and her claim “would, in effect, introduce a form of forced heirship unknown to the law.”

The application was therefore dismissed, as was permission to appeal. The judgment is a reminder of the importance of acting swiftly when bringing a claim under the 1975 Act and a further warning that the 1975 Act does not offer claimants carte blanche to undo the provisions of a will.

Richard Wilson QC acted for the 1st, 2nd and 9th Defendants.

Author, Jamie Randall.