A claim in time saves nine: the six-month rule under s.4 of the Inheritance (Provision for Family and Dependants) Act 1975

It goes without saying that we should all be as timely as possible. Deadlines are a factor of daily life. However, some deadlines are harder than others. But how hard is the deadline under s.4 of the Inheritance (Provision for Family and Dependants) Act 1975?

Legislative Background

The Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’) allows for certain classes of people to claim provision from the estate of the deceased. Essentially, the Inheritance Act allows for a claim that the will (or distribution on intestacy, if there is no will) did not provide a person with enough (e.g. a house, lump sum, income etc.) and therefore there has not been ‘reasonable financial provision’. The classes of possible claimant are:

1. Spouses or civil partners; 
2. Former spouses or civil partners who have not remarried or entered a civil partnership; 
3. A person who, for the two years before the deceased died, was living with them in the same household as if they were married or in a civil partnership; 
4. A child of the deceased; 
5. A person treated by the deceased as a child of the family;
6. A person immediately before the death of the deceased who was being maintained by the deceased. 

Under s.4 of the Inheritance Act, a person from one of the classes only has six months from the grant of probate or letters of administration in order to make a claim. After this deadline, a claim can only be made if the court gives permission. 

Legal framework  

A leading case on the issue is that of Berger v Berger [2013] EWCA Civ 1305. In the case, the deceased’s widow applied for financial provision nearly six and a half years after the grant of probate. Sadly, the widow was in her mid-80s, was in poor health and argued that her husband’s will did not make reasonable financial provision for her. She and her husband had been together for 36 years. 

The wife took issue with the income support she was to receive soon after her husband died. Despite getting legal advice, she did not do anything about it at the time. One of the reasons she gave for the delay was the reluctance to get involved in litigation with her step-sons. There was also an issue that she had not been adequately advised as to her rights and remedies around the time of the grant of probate. 

The principles to be followed in an application for permission to apply after the six-month deadline 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 expiry of 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 the court allows the application to proceed?

Discussion

Sadly, the widow in Berger v Berger was not given permission to apply out of time, a decision that was upheld on appeal. It appears that she could simply not get over the hurdle that was the significant delay of six years, without a compelling reason for the delay. 

However, there have been occasions where a judge has given permission, despite sometimes years of delay. In Stock v Brown [1994] 1 FLR 840, permission was given after six years, partly due to the dramatic fall in interest rates and the increasing costs of care of the applicant. 

In Re C (Deceased)(Leave to apply for provision) [1995] 2 FLR 24, permission was given on behalf of an 8-year-old illegitimate daughter despite a delay of 18 months. Permission was given due to a substantive order being inevitable on the merits and that the delay was due to her mother and that ‘the child will suffer as a result of another’s fault’ if the court did not grant permission. In McNulty v McNulty [2002] WTLR 737, a widow obtained permission despite a delay of three and a half years. In that case, the trustees of the will trust deliberately withheld information from the probate valuer, which was only discovered later.  

What does this mean for you?

Ultimately, every case will be fact specific. However, it seems clear that, absent good reason, a long delay will result in permission being denied. The six-month rule in s.4 of the Inheritance Act is clearly aimed at ensuring finality. Executors need to be able to manage and distribute the estate. Relevant parties will want to move on with their lives and not have the threat of potential litigation hanging over their heads. 

It seems that courts will not entertain applications for permission without good reason; but what is a good reason? That is the harder question. Unfortunately, it seems that the answer to that will be ‘it depends’. 

The months (and even years) after the loss of a loved one are difficult. It is an emotional time. However, these cases show just how important it is to get the right advice at the right time. Delaying that advice, or making a claim, can be critical. 

26th Feb 2026

Tom Gilchrist

Call 2018 (2016 - New Zealand)