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The recent case of Berger v Berger has highlighted the importance of time limits in inheritance and probate disputes.
In this case, the Court of Appeal refused permission for a surviving spouse to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) nearly six and a half years after the grant of probate was issued.
Inheritance Act claims- Background
The effect of the Act is to enable eligible persons who have not been provided with “reasonable financial provision” from a deceased’s Estate to seek to change how the Estate assets are distributed.
The following classes of persons are eligible to pursue such a claim:
- The spouse or civil partner of the deceased;
- The former spouse or civil partner of the deceased;
- A child of the deceased;
- A person treated as child by the deceased;
- A person who was maintained by the deceased; or
- Any person living in the same household as the deceased as a spouse or civil partner for a period of at least two years prior to the date of death.
The time limit for making a claim under the Act is six months from the grant of probate although the Court does, in some circumstances, have discretion to consider claims after that time limit has expired.
Background to the Berger v Berger case
The deceased, Mr Clive Zola Berger died on 26 June 2005 leaving an Estate worth approximately £7.5 million which included properties in London, the USA and Surrey, in addition to a large shareholding in a development company. The deceased left behind his wife, Rosana Berger and two sons from his previous marriage. His sons were appointed as executors and trustees of this Estate. Probate was granted in January 2006.
In addition to granting Mrs Berger a right to reside in the matrimonial home for the rest of her life, the deceased left the residue of the Estate on trust to provide an income to Mrs Berger for her lifetime. The executors were required, under the terms of the deceased’s Will, to invest the Estate with a view to maximizing the income of Mrs Berger.
In 2005, Mrs Berger expressed concern over the way in which the trusts were being administered and claimed that she was not being provided with sufficient income. She took legal advice and decided not to take legal action, so as to avoid causing family tensions. Unfortunately, Mrs Berger was not advised about a potential claim under the Act at that stage.
On 15 June 2012, after taking further legal advice, Mrs Berger issued proceedings under the Act on the basis that the deceased’s Will did not make reasonable financial provision for her.
Decision
The High Court judge refused to give Mrs Berger permission to bring her claim as she was out of time. The judge concluded that the length of the delay (nearly 6 and a half years) was fatal to her case.
The Court of Appeal upheld the decision of the High Court and determined that in light of the substantial delay and the history since the death of the Deceased, Mrs Berger was not permitted to bring her claim. Even though the Estate had not been distributed, the court placed particular emphasis on the fact that after a lengthy period of time, nothing had triggered Mrs Berger to take advice at such a late stage, such as new information or new evidence. She had done nothing for many years, whilst the executors had continued to manage the Estate without the expectation of the Will being challenged.
Conclusions
It is clear that whilst an applicant making a claim under the Act, out of time, faces an uphill battle, one can anticipate the type of circumstances when the court may consider allowing such a claim to proceed, for example where the Estate has not been distributed and where there is a good reason for the delay. However, the key message to anyone considering a claim under the Act, and indeed anyone involved in a potential inheritance or probate dispute is not to leave matters to chance and to take legal advice as soon as possible.
Should you wish to have a free initial telephone consultation in order to discuss your particular matter relating to this area, please call us on 01384 410410 and ask to speak to James Coles or Susan Ford. Alternatively, you can email us your enquiry at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues, along with your contact details, and we will contact you for an initial free telephone consultation.