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.
Related Barristers
Described by The Legal 500 as “one of the stars of his generation”, Richard Wilson KC specialises in litigation, drafting and advisory work across traditional and commercial chancery. His practice focuses on trusts and probate, both contentious and non-contentious, related company and partnership law, claims under the Inheritance (Provision for Family and Dependants) Act 1975, tax, professional negligence and civil fraud.
Richard has acted in many of the most significant and high-value cases in these areas in recent years. He is currently involved in several disputes concerning the estates of ultra-high-net-worth individuals (UHNWIs) in England and overseas.
His practice frequently involves offshore matters and private international law. He has appeared before the Privy Council, the Supreme Court and Court of Appeal of Gibraltar, the Supreme Court and Court of Appeal of Bermuda, the Supreme Court of The Bahamas, the Grand Court of the Cayman Islands, and the Eastern Caribbean Supreme Court and Court of Appeal. He has also provided expert evidence on English law before the Royal Courts of Jersey and Guernsey.
Richard regularly acts in disputes across all the principal offshore jurisdictions. A significant proportion of his practice involves international clients, particularly those based in Asia, including Hong Kong.
Richard Wilson KC
Call: 1996
Silk: 2016
Jamie Randall has a practice spanning a wide range of disputes concerning commercial and personal interests, and frequently the interconnection between the two. His recent trust and probate work covers the full spectrum of traditional chancery proceedings, including claims for breach of trust, accounts and removal of trustees, proprietary estoppel, 1975 Act claims, and probate disputes. Those cases often have an international element and he has acted on cases in numerous jurisdictions, including Jersey, Guernsey, Singapore, The Bahamas and Bermuda. His commercial work often includes claims for breach of fiduciary duty, deceit, unfair prejudice and insolvency-related issues.
Prior to coming to the Bar, Jamie worked in strategy consulting focused on the financial services sector. He approaches cases with pragmatism and always maintains a focus on the commercial outcome for clients. He also still enjoys being able to apply his financial experience to complex claims concerning valuation and forensic accounting issues.
Jamie Randall
Call: 2017
