Farmer’s wife Mary Sargeant was a beneficiary when her husband of over 45 years, Joe, died in 2005. The estate – mainly land – was worth over £3.2 million but interest from housing developers as a result of outline planning permission had boosted its value to at least £8 million.
The estate was placed into a discretionary trust to be managed by three executors – Mary, her daughter Jane, and the family solicitor, Michael Thomson. Jane was a partner in the family farming business and her mother had allowed her to live rent-free in a lodge on the farm after her father’s death when she was going through a divorce.
Although Joe had adopted Mary’s son, Jeff, he did not leave him anything in the Will other than his gun and some fishing equipment. Mary had been advised after Joe’s death that she faced an Inheritance Tax bill of around £228,000 unless she took steps which included charging her daughter rent for the lodge.
A ruling by the High Court in Birmingham has rejected Mary’s claim, made some ten years after probate was granted, that she did not understand her position as a discretionary beneficiary. She had experienced money worries during this time and was keen to preserve the value of her estate to be able to leave something to her son’s children.
“Unfortunately, under the 1975 Inheritance (Provision for Family and Dependents) Act, claimants have just six months from the grant of probate to make an application for financial provision,” says Lucy Atwill, a solicitor at Curtis Whiteford Crocker. “If someone wants to make a claim after this time limit has expired, then they must make an application to the Court for permission to pursue a claim.”
In the ten years since Mr Sargeant’s death, his wife had received advice from the family solicitor and a financial advisor who had suggested charging her daughter rent and other remedial measures to improve her financial position. Her application to the courts for the matter to be heard after the six-month deadline had elapsed was on the basis that she had not understood the financial implications of her position as a discretionary beneficiary.
The High Court rejected the application, although His Honour Justice David Cooke recognised the financial difficulties Mary had experienced and the distress caused when these resulted in disagreements with her daughter.
“Mr Sargeant had left clear instructions and notes about his will and the court recognised that Mary’s solicitor had suggested she seek independent legal advice as he had been appointed to be a trustee and act in the interest of the estate,” says Lucy Atwill.
“The court decided that Mary had made the decision to work within the arrangements provided for by the will for ten years rather than seek independent legal advice to explore whether she had any option available to vary them. It underlines the need to have clarity in drawing up a will but also understanding what steps you can take if there are unforeseen problems.”
Ultimately the decision highlights the need to seek legal advice regarding a claim early on and that permission to apply out of time will only be granted in certain situations. The ruling confirms that where a person unreasonably delays in making a claim for financial provision, under the Inheritance (Provision for Family and Dependants) Act, 1975 – especially if they had knowledge of the facts necessitating an application for some time – the Court is unlikely to grant permission. However applicants may have a better chance of success in bringing out-of-time applications under the Act if they have been unaware of relevant facts, have been misled, or the situation has changed as a result of events outside their control.
Lucy Atwill heads up the Wills and Probate department of Curtis Whiteford Crocker, with offices in Plymouth, Tavistock and Torpoint. Visit www.cwcsolicitors.co.uk. Contentious probate specialist Tony Pearce can be contacted at firstname.lastname@example.org. He has written on the subject and his articles can be found at www.lawskills.co.uk