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Berger v Berger - Do not delay if you think you have an inheritance claim

View profile for Andrew Leakey
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A recent decision in the Court of Appeal, in the case of Berger v Berger [2013] EWCA Civ 1305, has highlighted that the Courts are becoming much stricter with deadlines for starting inheritance claims in Court.

Under the Inheritance (Provision for Family and Dependants) Act 1975, a person has the ability to bring a claim against the estate of a person, if they feel that they have not been provided for sufficiently. You can bring such a claim if you fall into one of the following categories:

  • A spouse of the deceased, including Civil Partnerships;
  • A partner of the deceased, providing that you had lived together as man and wife for at least 2 years immediately before they passed away;
  • A child of the deceased, or someone treated as a child of the deceased;
  • A dependant of the deceased, who was financially dependant upon them, immediately prior to them passing away.

Any claims under this Act have to be started in Court within 6 months of the date of the issue of the Grant of Probate, or Grant of Letters of Administration, for that person’s estate.  The Grant is the document that is obtained by the personal representatives, or executors, giving them authority to administer the estate.  This is therefore a very strict time limit.  Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 does allow the Court to give permission for a claim to be started in Court after this time limit has elapsed, but permission has to be applied for, and as can be seen here, refused.

In the Berger v Berger case, the Court of Appeal was asked to appeal the decision of the HHJ Hayward Smith QC in the High Court, earlier this year, where he too refused permission to issue the case out of time.  In that case, the claim was being brought by the wife of the deceased, who had passed away on the 26th June 2005.  The Grant of Probate was issued on the 27th January 2006.  The deceased’s wife felt that the Will he made shortly before his death did not provide sufficiently for her and she issued proceedings for a claim under the Act on the 15th June 2012, some six and a half years after the Grant of Probate was issued.

In explaining the reason for the delay in bringing a claim, the judge in the High Court had noted from the evidence that Mrs Berger was expressing concerns regarding her income position at a very early stage after her husband’s death.  Mrs Berger had also consulted with solicitors very soon after her husband’s death, albeit it appeared that none of them advised her of a potential claim under the Act.  It was only when her financial situation began to worsen over the following years, that her children then encouraged her to seek more legal advice.  Combined with some health complications, proceedings were therefore not issued until June 2012.

The Court of Appeal upheld the decision of the High Court, commenting that the substantial delay was not one they could overlook, notwithstanding that the estate had not yet been fully paid out, and notwithstanding that she was never advised to bring a claim.  Mrs Berger was therefore not allowed to bring her claim against the estate.

I am a solicitor specialising in these types of claims, and am a member of the Associate of Contentious Trusts and Probate Specialists. I dealt with a similar case myself last year where I was acting for a client defending a claim under the Act, and where, due to the fault of their solicitor, the claim had been issued just 1 month after the limitation date. As the claimant in that case had instructed their solicitors prior to the expiry of the limitation date, and as it should never have been missed, the Court refused permission for them to issue the claim after this date, and the claim was successfully struck out. I have also had claims in the past however, where clients have only instructed me after the date had passed, where permission has been granted.

What is very clear from these cases is that the Court will decide each case on its own specific circumstances.  However, it is always strongly advisable to seek specialist legal advice in relation to a claim, if you think that you may have one, as soon as possible after that person has passed away.  If you do not, for whatever reason, you run the risk of being prevented from bringing a claim if you change your mind a few months down the line.

For a fixed fee of £49.95, you can have a 30 minute appointment with either myself, or another solicitor who specialises in your kind of case.  The appointment can be either on the telephone, or face to face, depending on your preference.  We will take some details from you before the appointment, and then the solicitor will discuss your case with you, and what your options are.  If your case is something that we can then help you further with, we can then discuss your funding options with you.  For cases like this, we can sometimes consider a “no win no fee” agreement, depending on the circumstances of your case.

By Heather Korwin-Szymanowska, associate solicitor, Will, trust & estate disputes team