China’s approval of the national security law signals the premature end to Hong Kong’s autonomy
Jessica Jim 詹穎怡
In the case of Berger and Berger  EWCA Civ 1305, the Court of Appeal has refused permission for a surviving spouse to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 nearly six and a half years after a grant of probate was issued.
This was an appeal against an order made by HHJ Hayward Smith QC on 5 February 2013 refusing permission for the appellant to make an application for an order under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act"). The appellant needed permission by virtue of section 4 of the Act because more than six months had elapsed since the date on which representation was taken out in relation to the estate of the deceased.
The deceased, who was the appellant's husband, died on 26 June 2005 and probate was granted on 27 January 2006. Section 4 of the Act provides that "an application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out".
At the time of the appeal, the appellant was in her mid-80s and in poor health. The appellant had expressed concern about her income position from relatively soon after the deceased died. However, it was not until June 2012 that the appellant commenced proceedings, nearly six and a half years after the grant of probate. The appellant contended that the disposition effected by the deceased's Will, made in April 2005 shortly before he died, was not such as to make reasonable financial provision for her.
The Court of Appeal upheld the decision of HHJ Hayward Smith QC and refused the appellant permission to continue her claim under the Act.
Section 4 does not give any guidance as to how the court should approach an application for permission to make a claim outside of the limitation period. However, the Court of Appeal found that HHJ Hayward Smith QC had followed the correct approach by distilling certain principles from the cases of Re Salmon  Ch 167 and Re Dennis  2 All ER 140.
Primarily, the court must consider whether the applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit, taking into consideration factors such as:
Black LJ found that, despite the potential merits of the claim, the substantial delay in bringing these proceedings and history during the period since the passing of the deceased prevented the appellant from continuing her claim. Emphasis was placed upon the fact that the claim was not provoked by a particular event, such as the discovery of facts which had previously been concealed. On the contrary, the appellant had been actively interested in bringing a claim relatively soon after her husband’s death, and could have pursued her interests then should she have wished to do so.
This case provides useful guidance as to what the courts will consider as relevant factors when deciding whether to exercise its discretion under section 4 of the Act.
Whilst undoubtedly the starting position is that an applicant faces an uphill battle if a claim for financial provision under the Act is commenced more than six months after probate was granted, it is not difficult to see that in some circumstances the Court will permit an application to bring a claim out of time. By way of example, provided the applicant has an arguable case, the court may grant permission to bring the claim out of time if the estate has not been distributed and if there is a good reason why the claim has been commenced out of time (particularly perhaps if the parties have been negotiating).
A good reason for the delay might be new facts or evidence coming to light. However, clearly the longer the delay, the more difficult it is to explain and the more likely it is that the estate will have been distributed and other beneficiaries would be prejudiced by allowing the claim to proceed out of time.
The message to potential applicants is not to leave it to chance and to commence claims under the Act as early as reasonable possible, and preferably within six months of probate being granted.
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