Are you worried that it is too late to bring your contested probate case?
Have you been told that you are out of time to seek provision from a loved-one’s Estate?
Is there anything that can be done if the time-limit has expired?
The 6-month time limit.
Any person who is not a beneficiary of an Estate, but who seeks to receive provision from that Estate, should bring their claim to the attention of the Courts within 6 months of the Grant of Probate being issued.
Ordinarily, as soon as this time-limit has expired, it will no longer be possible to pursue a claim.
It seems harsh, but this rule is there to protect people. Executors, who have administered the estate properly and have distributed the assets to the beneficiaries in good faith, need to be protected from an unforeseen claim for a portion of the Estate. Beneficiaries, who have received their entitlement and perhaps even used the funds, need to be protected from a demand that they should return a portion of their benefit.
Nevertheless, with contested probate cases, 6 months is not a very long period of time and it is easy for that time to disappear. Taking the time to grieve for your loved-one, allowing others involved their own time to grieve, and perhaps waiting even longer until “it feels right” to make enquiries about the Estate, all contribute to the delay. Unfortunately, this does not stop the clock from ticking, and time still runs out just the same.
Therefore, if you are concerned that you have not received a benefit from the estate to which you believe you are entitled, you should not hesitate in seeking to pursue it.
If you have such a claim to make, contact us for free advice and see if you can receive assistance from a specialist probate dispute solicitor on a No Win No Fee basis.
But what can you do if that time limit has already expired?
Never forget that the sooner you act the better. Your chances of success will be improved if you still seek to bring your claim as quickly as possible.
Official rules give a discretion to the court to allow a case to continue even though it is technically out of time. Judges are directed to apply this discretion “in accordance with what is just and proper”.
Therefore, you should identify substantial reasons why it is “just and proper” to allow your late case to continue. A judge is unlikely to indulge your request if your reasons are frivolous.
An unjustified delay on your part will not be helpful. Being aware of your need to make a claim, and doing nothing about it will not persuade a judge to look at your situation in a favourable light.
If you can show that you have brought your contested probate claim as soon as you possibly could (after discovering your need to make an application), your chances will be improved. The shorter the amount of time between the expiry of the 6-month time limit and the start of your case, the stronger your chances of being allowed to continue.
Having a good explanation for the cause of the delay will also assist you. Good reasons why your claim is late might include: –
- You were lied to about the content of the Will, and you took no action sooner because you believed that you would receive a benefit. As soon as you discovered the dishonesty, you took action.
- Your loved one told you that you would eventually receive your benefit after his/her partner died, but you have subsequently discovered that the partner has not made provision for you even though your loved-one believed they would. As soon as you discovered this, you brought your claim against your loved-one’s estate.
- There was a genuine delay in you discovering that your loved one had died, and thus a genuine delay in you bringing your claim.
- The circumstances giving rise to your need to bring a claim did not materialise until recently.
- It was necessary for a different case to be decided first, before the need to make this one arose.
Putting executors and beneficiaries on notice of your intended claim, so that they can take steps to properly respond, will also help. The court is more likely to assist you if your application does not take your opponents by surprise. The court will likely take a dim view of you if you ambush others with a claim that is already out of time.
Likewise, if negotiations have been started before the time limit expires, a judge will be more encouraged to allow your case to continue.
It will count against you if the Estate has already been distributed to the beneficiaries. A judge will find it easier to tell a beneficiary that he is to receive less than he expected to as a result of your claim, than to tell a beneficiary that he must return a portion of what he has already received.
Finally, demonstrating that (if it is allowed to continue) your case has good prospects of success will assist. If there is clearly a genuine issue that should be tried by the judge, the court is more likely to allow the case to go ahead.
Advice
- You should conduct a search at the Probate Registry to see if a Grant of Probate has been issued.
- If a Grant has been issued, you must act as quickly as possible.
- If time has expired, you should nevertheless notify your opponents of your intended claim immediately, and put the executors on notice that they should not distribute the estate until your claim has been resolved.
- Try to negotiate a settlement as soon as is possible, so that if they refuse to settle your claim, your opponents cannot deny that they are aware of your issues.
- If some other case must be tried first, notify the court of this case anyway, and apply for it to be delayed until your other issues have been resolved.
If you need assistance, contact us for free advice.
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