High Court Refuses Permission To Bring Out Of Time Application Under Section 4 Of The Inheritance (Provision For Family And Dependants) Act 1975 In Hendry v Hendry & Pertiwi [2019] EWHC 1976 (Ch)

In the latest in a series of decisions on out of time claims, the High Court refused permission to bring an out of time claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act“) where the claimant had failed to promptly bring her claim. The decision is a reminder both for claimants under the Act, and their solicitors, of the importance of bringing claims within the statutory time limits, and the potentially serious consequences of a failure to do so.

Background

Mrs Rosita Hendry met her husband, Mr Michael Hendry in 2001. The couple got married in 2003 and lived together until they separated in June 2016. Following the separation, in August 2016 Mr Hendry made a will, in which he made no provision for Mrs Hendry. In November 2016 Mrs Hendry petitioned for divorce.

Mr Hendry died in February 2017 and Mrs Hendry brought a claim for reasonable financial provision under section 2 of the Act. Probate was granted to Irwin Mitchell Trustees Ltd as executor on 29 August 2017. The deadline for Mrs Hendry to bring a claim for financial provision under the Act was therefore 1 March 2018 (6 months from the date on which representation was taken out). This claim was not issued until 27 April 2018. As such, Mrs Hendry sought permission to bring this claim out of time under section 4 of the Act.

Legal background

In determining whether to allow Mrs Hendry's out of time application under section 4 of the Act, the judge considered the following seemingly conflicting English authorities on the matter (which both came out after the hearing in Hendry):

In Cowan v Foreman [2019] EWHC 349 (Fam) Mostyn J refused permission to bring a claim 17 months out of time. That case drew an analogy with the court's approach to breaches of the CPRs and relief from sanctions, despite the fact that section 4 is a substantive, not a procedural rule. The judge considered that the proper approach to section 4 was to follow the principles set out in Berger v Berger [2013] EWCA Civ 1305 (summarised below). Permission has been granted to appeal the decision. In contrast, in Bhusate v Patel [2019] EWHC 470 (Ch) Chief Master Marsh granted permission to bring a claim almost 26 years out of time. He considered that the correct approach was to follow the guidelines set out in Re Salmon (Deceased) [1981] Ch 167 and Berger v Berger. The Chief Master was critical of drawing in the overriding objective or the relief from sanctions principles to a substantive...