The case of Cowan v Foreman heard in the Court of Appeal in July 2019 dealt with a claim made by a surviving spouse for financial provision to be made for her from her deceased husband’s estate under the Inheritance (Provision for Family and Dependents) Act 1975 (the Act). The time limit for a claim under the Act is six months from the grant of probate or letters of administration. However, the Court does have the power, at its discretion, to allow a claimant to bring a claim after this time limit has expired. The Court’s decision in Cowan v Foreman is important because it clarifies the existing case law about late claims and, arguably, makes it easier for a claimant to bring a claim out of time.
After the six months had passed from the date of grant of probate, the claimant wrote to the defendants explaining that she understood that her claim was out of time but asking the defendants to agree not to take a point on it. The claimant hoped to negotiate a settlement and avoid litigation. If the defendants were not willing to agree, the claimant would have to issue an application right away to be allowed to bring a late claim in order to avoid prejudice to her claim. The defendants agreed however that they would not take the point and the parties instead began negotiations. When negotiations failed, the claimant then issued an application to bring her claim out of time and the defendants opposed the application.
The Judge at first instance, Mostyn J, had dismissed the application for the following (summarised) reasons:
a) due to the generous trust arrangement that had been put in place for the claimant by her husband’s will, she did not have a reasonable prospect of successfully arguing that reasonable provision had not been made for her; and
b) the claimant failed to provide good reasons to justify her substantial delay in making the application (17 months). Mostyn J considered the agreement reached between the parties in correspondence to be unacceptable because only the Court, and not the parties, had the power to agree to a claim being made out of time. He thought that the claim ought to have been issued in time and the Court invited to stay the matter for negotiation.
The claimant appealed this decision to the Court of Appeal.
It is the Court of Appeal’s judgment in relation to delay, agreements to vary or disapply time limits and the distribution of the estate (prior to a claim being made) which is of particular interest to a claimant wishing to bring a claim out of time. It provided the following guidance:
i) The six month time limit is not a disciplinary provision and ought not to be enforced for the sake of enforcement.
ii) The claimant provided a proper explanation for the delay in bringing proceedings and it is incorrect to suggest that there must be ‘good reason’ for a delay. Similarly the claimant could evidence that she acted promptly when explaining the circumstances of the delay.
iii) The power to extend time belongs to the Court and any agreement in relation to delay between the parties cannot be binding on it. That said, if both parties are legally represented it would be unlikely that the Court would refuse to endorse the approach.
iv) The Court’s attitude will depend on all the circumstances of the case and may be influenced by whether some of the parties to the claim have not been privy to the agreement to vary or disapply time limits.
v) Drawing up a formal written agreement rather than relying on a chain of correspondence is advisable for the sake of clarity.
vi) Although previous case law has found that negotiations commenced before the expiry of the six month limitation period are a relevant consideration when considering an application to bring a claim out of time, it may well be appropriate to give due weight to negotiations which take place after the six month period has expired.
vii) Whether the estate has already been distributed is an important, but not decisive, factor to be weighed by the Court in deciding whether to allow a claim out of time and must be borne in mind alongside all other circumstances of the case.
viii) The test in existing case law which sets out seven principles for the Court to consider continue to be of importance when it exercises its power to grant permission for a claim to be brought out of time. In addition, matters such as the size of the estate, the length of the relationship and a spouse’s lack of autonomy and security are also of importance.
ix) The Court will consider whether prejudice will be suffered by any other beneficiaries as a result of the litigation, such to outweigh the factors in favour of granting permission.
Whereas it was previously quite difficult for a claimant to succeed with an application to bring a claim for provision from an estate out of time, this case appears to have made it more likely that these applications will succeed in future although each case will depend to some extent on its own facts.
 Cowan v Foreman (as executor of the estate of Michael Cowan and as trustee of the Business Property Trust and the Residuary Trust in the Will of Michael Cowan dated 24 March 2016 and as trustee of the Michael Cowan Foundation) and others  EWCA Civ 1336
 Berger v Berger  EWCA Civ 1305 - They are: (1) The Court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper. (2) The onus is on the Applicant to show sufficient grounds for the granting of permission to apply out of time. (3) The Court must consider whether the Applicant has acted promptly and the circumstances in which she applied for an extension of time after the time limit. (4) Were negotiations begun within the time limit? (5) Has the estate been distributed before the claim was notified to the Defendants? (6) Would dismissal of the claim leave the Applicant without recourse to other remedies? (7) Looking at the position as it is now, has the Applicant an arguable case under the Inheritance Act if I allowed the application to proceed?