Claimants who wish to bring a claim under the Act must do so within six months of the date of the Grant of Probate or Letters of Administration.
If the Grant has been extracted, the six month date by which to bring a claim can be easily calculated. In circumstances where details of the date are not known, an application can be made to the Probate Registry for a Standing Search (Rule 43 of the non-contentious probate rules “NCPR”) requiring the Probate Registry to notify if a Grant is issued. In addition, searches of the register can be made using findawill.gov.uk
The entry of a caveat under Rule 44 NCPR is not appropriate in standalone claims under the Act.
The bringing of a claim requires the issue of a claim with the court. A claim under the Act is not classed as a Probate claim and, as such, claimants should use the Part 8 procedure available under the Civil Procedure Rules “CPR”. The six month time limit will not be met unless and until the court receives the claim.
Can claims be brought outside of the 6 month period?
Claims under the Act may be commenced outside of the six month period but only if a Claimant has first obtained permission of the Court under section 4 of the Act. This states:
“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”.
The Court has a wide discretion to allow claims to be brought outside of the six month period but the discretion will be exercised depending upon all the circumstances of the case. The Court will also apply and consider the following:
- Has the application for permission been made promptly?
- Had any negotiations commenced within the 6 month period?
- Has the estate been distributed?
- Would the Claimant be able to seek redress elsewhere?
- Has the Claimant got a meritorious claim?
Each claim will depend upon its own unique set of circumstances and merits. In acting for a Claimant, the importance of detailed examination of the criteria above (arising from Berger v Berger  EWCA Civ 1305, Re Salmon  Ch 167 and Re Dennis  2 All ER 140] cannot be overstated. Specialist and expertise advice should always be taken at the earliest opportunity to prevent your position from being prejudiced.
When acting for a Defendant, you need to consider whether the Claimant has satisfied the above requirements. If not, it could be worthwhile challenging the out of time application and potentially obtaining a costs order in your favour.
Written by Helen Thompson, the Head of our Contentious Probate team at Myerson