Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) are brought by people who believe they have not been adequately provided for by a deceased person’s will or under the rules of intestacy, and who seek reasonable financial provision from the estate. One of the most critical hurdles in claims under the 1975 Act is the six‑month statutory time bar, after which claims can only proceed with the court’s permission. In this article, Emma Holland and Sophie Price examine when the court will exercise its discretion to grant permission and what claimants need to demonstrate to succeed.

Unlike many other civil claims, where limitation is usually between six and twelve years, claims under the 1975 Act must be brought within a much shorter period.  It is understood that this is to encourage the prompt administration of estates without the fear of subsequent legal challenges. However, the time limit is not absolute: the court retains unfettered discretion to permit claims out of time, and the principles governing that discretion continue to evolve.

1975 Act claims may be brought within six months running from the date of the grant of representation (not the date of death; see section 4 of the 1975 Act). After six months, a claimant must obtain the court’s permission to bring a claim. The statutory time bar does not automatically extinguish the claim; it bars it procedurally unless the court’s permission is granted. There is therefore no strict limitation defence. The statutory time bar after the expiry of the six‑month period is subject to judicial discretion.

Conversely, a claim under the 1975 Act may be issued before a grant of representation has been taken out in relation to deaths occurring on or after 1 October 2012. In addition, certain types of grants do not start the limitation clock running, such as:

1. a grant limited to settled land or to trust property,
2. any other grant that does not permit any of the estate to be distributed,
3. a grant limited to real estate or to the personal estate unless a grant to the remainder of the estate has previously been made or is made at the same time, or
4. a grant or its equivalent made outside the United Kingdom (however, a grant resealed under the Colonial Probates Act 1892 counts as a UK grant, and limitation runs from the date of sealing).

The court’s discretion

The leading case on the exercise of discretion to extend the six‑month deadline is Re Salmon (Deceased) [1981] Ch 167. In Re Salmon, the deceased’s widow issued her claim more than five months after the six‑month period. The judge identified several key factors the court should consider when deciding whether to grant permission to bring a claim out of time, including:

• The court’s discretion to extend the deadline is unfettered. There are no restrictions or requirements of any kind under the 1975 Act, and the court found that “the discretion is plainly one that is to be exercised judicially and in accordance with what is just and proper”.
• The claimant must establish sufficient grounds for taking the case out of the general rule and depriving those who are generally protected by the limitation period (principally the beneficiaries of the estate).
• Whether the claimant acted promptly once the issue of limitation arose. The judge stressed that this is not simply a matter of considering how long has elapsed; the court will consider all the circumstances of the case.
• Whether negotiations have commenced between the parties within the limitation period. If so, that is likely to encourage the court to grant consent. However, negotiations after the time limit has expired may also aid the claimant if the other party or parties have not raised limitation as an issue.
• Whether or not the estate has been distributed. For beneficiaries of an estate, the distribution of the estate marks a psychological change. Before distribution, a beneficiary has only the expectation of receiving their share. For most people, there is a real difference between the ‘bird in the hand and the bird in the bush’.
• Whether the court’s refusal would leave the claimant without redress against anybody.
• The claimant must show there is an arguable case.

Court of Appeal endorsement of the Re Salmon factors

The Court of Appeal affirmed these principles in Cowan v Foreman [2019] EWCA Civ 1336, finding that the first‑instance judge had erred by focusing only on delay and the merits. The other Re Salmon factors were relevant and should have been evaluated.

In Cowan, negotiations had been ongoing during the period of delay. Even though the estate had been distributed and assets transferred to trustees, no individual beneficiary would be required to refund assets if an order were made. It also appeared unlikely that the claimant had any remedy against anyone else.

Lady Justice Asplin considered that the first instance judge had adopted an overly disciplinary approach to the time limit in section 4. The time limit is not trivial, but it is not to be treated in the same way as procedural deadlines under the Civil Procedure Rules. While applicants must advance a substantial case, there is no universal requirement that every period of delay must be justified by a “good reason”.

What is “too far out of time”?

Case law demonstrates that there is no fixed concept of being “too far out of time”. In Bhusate v Patel [2020] EWHC 52 (Ch), the court permitted a widow to bring a claim more than 25 years after the expiry of the six‑month period. Each case depends on its facts, and the judge must weigh all relevant factors.

That said, out‑of‑time applications should be made as swiftly as possible. This was demonstrated in the case of Hendry v Hendry [2019] EWHC 1976 (Ch), where the application failed partly because the claim was weak, but also because:

• The widow failed to give an adequate explanation for the delay even after being given extra time. Once she realised she was out of time, she should have issued a protective claim promptly and informed the estate’s solicitors, but she did neither, contrary to Re Salmon.
• The judge considered whether negotiations had begun in time. A 6 April 2017 attendance note suggested a claim was likely. Her solicitors then lodged a caveat—incorrectly, as there was no validity challenge—and despite requests on 27 July and 8 August 2017, no Letter of Claim was provided. Their 8 August email merely listed alleged items at the property and claimed a default 50/50 division between the widow and the deceased’s children from a previous marriage. A proposed round‑table meeting for 2 February 2018 was abandoned when she withdrew.
• Although there was some interaction, the judge held these were not effective negotiations: there was no considered analysis, and asserting a 50/50 entitlement was insufficient.
• The judge also noted that refusal would not leave her without recourse because her solicitors had admitted missing the time limit, giving rise to a potential negligence/breach‑of‑contract claim.

Conclusion

The six‑month period for issuing 1975 Act claims is not a strict limitation rule. When asked to extend time, the court conducts a fact‑sensitive balancing exercise, considering delay, prejudice, the stage of estate administration, and the merits of the claim, with fairness to both claimants and beneficiaries being a guiding principle.

If it is unclear whether a grant of representation has been issued and the six-month deadline is approaching, claimants should contact the personal representatives for clarification. If uncertainty remains, a standing search at the Probate Registry can be lodged and renewed every six months.

Given the consequences of delay, it is essential to seek formal advice promptly, particularly where the six‑month period is close to expiring or has already expired.

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