Delay at your peril

Like London buses two come along at the same time - hot on the heels of last month’s judgment in Cowan V Foreman we now have another decision in relation to an application for permission to extend time for bringing a claim under the Inheritance Act (Provision for Family & Dependants) Act 1975 (“the Act”).

The family tree

In this case, Bhusate v Patel [2018] Mrs Bhusate issued an application seeking an extension of time to bring a claim under the Act. Mrs Bhusate (“Shanatabi”) was the third wife of Mr Bhusate (“Kashinath”) who died intestate on 28 April 1990. Kashinath’s first wife (“Vishwanath”) with whom he had five children, died in 1971. Shanatabi and Kashinath also had one child.

The estate

On 12 August 1991 letters of administration were granted to Shanatabi and Managala, one of Kashinath’s children with Vishwanath.

Kashinath’s estate essentially comprised a property in Golders Green, London where he and Shanatabi had lived. The property had originally been registered in the sole name of Vishwanath. When she died, he had been granted letters of administration in relation to her estate and subsequently assented to the property being transferred to his sole name. Despite the passage of 28 years since the date of his death, the property remained registered in his sole name. At the time of Kashinath’s death the property was said to be worth about £138,000. Under the intestacy rules, Shanatabi was entitled to a statutory legacy of £75,000 and a life interest in one half of the balance of the estate together with interest at the applicable rate of 6%.

The property

During 1992 and 1994 attempts were made by Shanatabi to sell the property. A couple of offers of £120,000 and £135,000 were received but the children took the view that given the state of the market a sale was disadvantageous. Had a sale proceeded at that time, Shanatabi would have been entitled to the entirety of the equity in the property. Thereafter, the property continued, for the most part to be occupied by Shanatabi and her son. The step-children showed no interest in the property. They did not seek to suggest that Shanatabi should pay any rent for her occupation of the property nor did they assist in any way with the upkeep, maintenance or insurance of the property which was all funded by Shanatabi and/or her son.

The proceedings

Shanatabi issued proceedings. She included a number of different types of claims including (a) proprietory estoppel in various forms relating to the property and (b), for payment of the statutory legacy and capitalised life interest plus statutory interest. She also issued a secondary claim under the Act. As this claim should have been brought within 6 months from the date of issue of the letters of administration she seeks an order for permission to bring the claim out of time.

Shanatabi’s claims were opposed by Vishwanath’s children, although supported by her son. Vishwanath’s children also opposed her application for an extension of time in relation to the Act.

The first decision

The matter came before Chief Master Marsh. He struck out all of Shanatabi’s claims save for the one in relation to the Act. In this respect, at a subsequent hearing, he then went on to consider the application for an extension of time. The claim under the Act was issued on 29 November 2017, some 25 years and 9 months after the deadline had expired for doing so.

Application to extend time

Shanatabi was 28 years of age when she married Kashinath in India. When she arrived in the UK she spoke little English and despite having been here for some 38 years her English remains very limited. She is only able to read limited English.

In her witness evidence she described the period after Kashinath’s death as being very traumatic and that she felt unable to deal with the practicalities of widowhood. She had health issues of her own to deal with at the time and her son was only 9 years old when his father died.

In granting her application, Chief Master Marsh said she had demonstrated “compelling reasons” why it was right and proper for the court to exercise its discretion in her favour. He had already commented at the previous hearing that Shanatabi’s position was a “stark one”. If Vishwanath’s children were right she “had no interest in the property but, also, she has lost her entitlement to her statutory legacy and capitalised life interest.” He went on to comment that he noted this would result in her losing her home and obtaining no benefit from Kashinath’s estate other than the occupation of the property for many years. The children, on the other hand, would he said “have done nothing to require due administration of their father’s estate over the same period and will obtain a windfall.”

By the time of the hearing, the property was now worth approximately £850,000.

Conclusion

Despite the outcome of this case applicants would still delay at their peril. As the court found Shanatabi had demonstrated compelling reasons why notwithstanding the considerable delay she would be granted permission. That is not going to be the case in every claim and applicants would be well advised to continue to issue claims sooner rather than later.