Before a Grant of Representation has been issued
For deaths after 1 October 2014, there is nothing to prevent a claim under the Act being brought before a Grant of Representation has been issued. A Grant of Representation is a document which Executors / Administrators of an estate often need to obtain from the Probate Registry in order to deal with the deceased’s assets. This document is often also referred to as either a Grant of Probate or Letters of Administration.
If the personal representatives are delaying obtaining a Grant of Representation, or have confirmed that they do not intend to obtain one, a claim under the Act can still be made. It is advisable to send a full letter of claim setting out your claim and evidence in support of it to the Executors / Administrators of the person’s estate and Beneficiaries prior to issuing a claim with the Court.
Within six months of a Grant of Representation being issued
The Act requires all claims to be brought within six months of the date upon which a Grant of Representation is first taken out, otherwise the permission of the Court is required. See below for further information about obtaining the Court’s permission.
Over six months after a Grant of Representation has been issued
If a claim has not been issued with the Court within six months of the date of a Grant of Representation, then the permission of the Court is required.
If you believe that you have a claim under the Act, but are aware or believe that a Grant may have been issued more than six months ago, it is important that you seek legal advice and act quickly.
The burden is on you to show the Court why you should be allowed to pursue a claim at this stage. Amongst other factors, the Court will consider how far outside the deadline you are, the reason for the delay and how likely your claim is to be successful when deciding whether or not to grant permission out of time.
Extending the six months deadline
Up until fairly recently, it was generally accepted that parties to a claim under the Act could extend this period by agreement. This was usually done by way of a Standstill Agreement signed by, or on behalf of, all parties where a claim was likely to quickly and easily settle.
In March 2019, the Judge in the case of Cowan v Foreman raised doubt in relation to this by saying:
"…If it is indeed common practice [to use a standstill agreement], then I suggest that it is a practice that should come to an immediate end. It is not for the parties to give away time that belongs to the court. If the parties want to agree [an extension of time] for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued…”
The claimant appealed and in July 2019 Court of Appeal Judges suggested that the position is now similar to what it was before. Therefore the current position appears to suggest that Standstill Agreements may be used in certain circumstances, as long as they are correctly prepared, but you should seek advice as to whether this is appropriate in your circumstances.
Clarion's Contentious Private Client Team are experts in dealing with claims under the Act and are happy to have an initial chat about the points detailed above. Please feel free to contact us on 0113 336 3427 and someone from the Team will be able to assist.
If you haven’t read them yet, why not take a look at the previous blog in this series to find out whether you are eligible to bring a claim and what you could expect to receive if you were successful. We’ll be publishing the next blog in this series in the coming weeks, so keep checking our blog.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.