Missed limitation deadline of family provision claim

Background

Ms Colbourne was the only child of her late parents.  Her mother, Christine Barbara Collier-White (“Christine”) and her father had been married for 55 years when he died in April 2018.  Both parents had executed mirror wills in December 2004 and when Ms Colbourne’s father died in April 2018, Christine therefore inherited the entirety of her late husband’s estate upon his death.  Under her parents’ will, Ms Colbourne had been due to inherit the entirety of her parents’ estates upon the death of both parents.

In July 2018, Christine became engaged Ms Collier-White, who had been her late husband’s carer and was 33 years younger than Christine.  They married in December 2018.

In September 2018, Christine made a new will leaving the entirety of her estate, including the former matrimonial home of her and her late husband, to Ms Collier-White.  The new will did not make any financial provision at all for Ms Colbourne.  The residuary estate was valued at about £195,000.00.

In January 2019, Christine died.

Ms Colbourne alleged that Ms Collier-White had taken financial advantage of Christine who was said to have been in a vulnerable position following the date of her late husband.  Given this, and the fact that Christine’s will did not make any financial provision at all for her, she instructed her solicitors to issue a claim under Section 2 of the Act.

 

Limitation

A grant of probate was issued to Christine’s executors on 27 September 2021.  Ms Colbourne therefore had until 20 March 2022 to issue her claim under the Act Unfortunately, Ms Colbourne’s solicitors missed the deadline to file her claim before the March 2022 deadline due to a technical malfunction with the solicitor’s case management system. Once this came to their attention, an immediate application for extension of time to issue proceedings was issued.

 

The claim

Ms Collier-White contested Ms Colbourne’s application on the basis, inter alia, that she had the right to bring a claim against her solicitors for professional negligence and that such a claim would afford her the necessary financial remedy that she sought under the Act. However, no evidence was before the court from Ms Collier-White as regards the potential merits of Ms Colbourne’s claim and in particular, the allegations that she had taken financial advantage of Christine.

Ms Colbourne’s financial position was such that she lived in a property at the public house where she worked.  She occupied that property pursuant to the terms of a service tenancy with her employers which would cease upon cessation of her employment.  She has no surplus income after payment of her outgoings and no savings.  She has a small employer’s pension but no mortgage capacity.  She was separated from her husband who himself did not own any real estate.  She had one child.  She also stated that Christine used to assist her with payment of expenses such as the purchase of white goods and furniture when she was unable to afford to do so.  She arranged her finances in expectation that she would inherit her parents’ estates following numerous assurances to this effect by her late parents.

 

Considering the application

Section 4 of the Act does not give any guidance as to how the court should approach an application for permission, but Ms Colbourne’s counsel referred to the court to the case of Re: Salmon, Coard v National Westminster Bank Ltd [1981] in which the court held that it was material to consider the following matters:

(i)       how promptly and in what circumstances the applicant sought an extension of time.

(ii)      whether negotiations commenced within the time limit.

(iii)      whether the estate had been distributed before a claim (or application for an extension of time) was made or notified; and

(iv)     whether a refusal to extend time would leave the applicant without redress.

 

It was also common ground between the parties that the court should have regard to the seven key considerations referred to by the Court of Appeal in Berger v Berger [2013].  In this regard, the court found, inter alia:

1.  The circumstances of Ms Colbourne’s claim under the Act are such as to warrant judicial consideration of the evidence and cross-examination of Ms Collier-White.
2. The burden of proof was on Ms Colbourne, and she had provided a witness statement from her solicitor setting out his explanation for the error which led to the necessity of this application.  She had also provided her own witness statement setting out the underlying merits of the claim.
3. Missing the deadline was not Ms Colbourne’s fault.
4. The parties had been engaged in pre-action negotiations as regards Ms Colbourne’s claim.  The error in relation to the failure to issue proceedings had come to light following receipt of a letter Ms Collier-White’s solicitors dated 22 March 2022 enquiring as to whether or not proceedings had been issued.  Attempts were made to seek Ms Collier-White’s agreement to extend time but without success.  This became clear on 29 April 2022 and Ms Colbourne’s application was issued on 13 May 2022.  The court therefore found that the application had been made promptly.
5. The estate has not yet been distributed.
6. As regards Ms Colbourne’s recourse to other remedies, the fact that she had a prospective negligence claim against her solicitors was a factor to be considered but was not a counterbalance against other important factors.  In Adams V Schofield [2004] the court considered this issue on an appeal against a refusal to grant an extension of time on the basis that the appellant had a clear professional negligence claim against her solicitors who were responsible for the delay.  In granting the appellant’s appeal, the court held that the prejudice to the respondent was purely formal in that they had simply lost the protection of Section 4 of the Act, the existence of the remedy against the solicitors was of little weight and would amount to a windfall for the respondent, since “the claim would be transferred to the shoulders of the solicitor’s insurers, unnecessarily and quite contrary to the justice of the case.”.  In addition, the remedy, and damages for loss of a chance (as would be the consideration in a professional negligence claim) is difficult to assess.  The court stated that whilst Ms Colbourne may have a claim against her solicitors, that was a very different claim from the claim under the Act and limiting her to a loss of a chance claim against her solicitors would be prejudicial to her.
7. In the context of the application, without determining its merits but having regard to Ms Colbourne’s financial position and other matters set out in her witness statement, the court was satisfied that she had an arguable case.

 

In all the circumstances, the court was satisfied that the interests of justice required permission to be granted to Ms Colbourne and an order was made granting her permission to issue her claim under the Act out of time.

 

What does this mean?

This case demonstrates that, in some circumstances, Section 4 can provide a safety net for applicants to bring a claim under the Act notwithstanding the expiry of the primary limitation period.  Nonetheless, it is important to remember that the court retains a discretion and there is no automatic right of grant of an order.  In this particular case, the court considered that the potential prejudice to Ms Colbourne not to be allowed to proceed with her claim was such as to warrant an extension being granted but the position may well have been different if any steps had been taken to distribute the estate or Ms Collier-White had filed any witness evidence in opposition to the claim  Applicants should therefore always continue to err on the side of caution and ensure that claims are issued in a timely and expeditious manner wherever possible.