Analysis
The appellant was the widow of Mohammed Yousaf Khan (Mr Khan), who had died on 22 March 2015 without making any financial provision for her under the terms of his last will dated 11 February 2014 (the 2014 will). Instead, Mr Khan had left the entirety of his estate, after payment of debts and expenses, to his daughter and personal representative, the respondent. The appellant, who was elderly and disabled, had lived at 22 Lombard Avenue, Dudley (Lombard Avenue) since 1993.
Probate was granted on 11 April 2016 and solicitors instructed by the respondent wrote demanding possession of Lombard Avenue on 9 June 2016. The appellant’s solicitors responded, referring to her entitlement to financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) and also claiming that Mr Khan lacked testamentary capacity to make the 2014 will. Mr Khan had made a previous will in 2004 appointing both parties as executors and giving his wife a conditional right to reside at Lombard Avenue, but with an absolute right to a half share of the proceeds of sale if she ceased to reside there. The respondent’s solicitors then indicated that they would refrain from commencing possession proceedings in view of the impending claims; however, instead of continuing to instruct solicitors, the appellant authorised a family friend, who was not legally qualified, to act on her behalf and correspondence ensued without a claim being made under the Act until after the expiry of the six-month time limit on 10 October 2016.
The respondent’s solicitors issued possession proceedings in respect of Lombard Avenue on 30 November 2016. The appellant reinstructed her solicitors shortly thereafter and eventually, after several procedural errors, an application under the Act was made on 2 February 2018. A formal application to the court for leave to extend the time within which to make the claim was made in March 2018. The District Judge, after referring to the guidelines identified by Sir Robert Megarry in Re Salmon [1981], rejected an explanation for the delay, based on language and other difficulties. He accepted that the appellant would be rendered homeless if Lombard Avenue were to be sold as the estate had not yet been distributed, and that her claim had substantial merit, but then he enumerated the various procedural failings and concluded that it would not be just and proper to exercise the statutory discretion to extend the time within which to make the claim. The District Judge’s decision was reviewed by a circuit judge who did not interfere with it nor purport to re-exercise the discretion of the court. The appellant appealed.
Held (allowing the appeal):
The Act gave an unfettered discretion to the court to extend the time, but it was a discretion which had to be exercised in accordance with its statutory purpose and context. The nature and purpose of the time limit and the power to extend had been considered by Briggs J in Nesheim v Kosa [2006]; he held that it was a special type of limitation period imposed under the Act in the sense that it conferred upon a court a discretionary power to permit a claim to be made out of time on well-settled principles and for a particular purpose – to avoid unnecessary delay in the administration of estates which would be caused by the tardy bringing of proceedings and to avoid difficulties which might be occasioned if distributions were made before they were brought, eg requiring recoveries from beneficiaries if those proceedings were successful. The balance of prejudice as between the parties was a relevant consideration and prejudicial delay, such as delay during which the estate has been distributed, should normally be accorded more weight than delay which has caused no prejudice. Case law also showed that an application would not be granted where the applicant did not have a real prospect of success on the merits of the claim under the Act. While it was right that the court should not conduct a mini trial, where it was able to form a clear view of the merits based on undisputed facts, it was right to reflect that view in deciding whether to extend time.
In this case, the District Judge’s exercise of the discretion was flawed for taking into account irrelevant matters and for failing to take into account relevant matters. No prejudicial delay had occurred because the estate had not been distributed. The District Judge had failed to analyse the effect of the unexplained delay in bringing the claim; as the validity of the 2014 will was under challenge in any event, it was difficult to ascribe any prejudice to the fact that the claim had not been started sooner. In effect, the two claims were alternative ways of attempting to secure that a possession order would not be made in respect of Lombard Avenue. The District Judge was plainly wrong to reach the conclusion that the property would have been sold had it not been for the appellant’s actions – the fact that she risked losing her home of more than 25 years if the extension of time was refused appears to have been discounted completely. Moreover, the District Judge had wrongly weighed in the balance the procedural failings of the solicitors, since the delay in bringing the claim was not rendered worse by those failings.
Consequently, it was open to the appellate court to exercise the discretion afresh and, while no negotiations had begun within the time period, the claim was notified to the respondent. Thereafter, when the challenge to testamentary capacity was mounted, the respondent could not press for the property to be sold and the failure to bring the claim under the Act could have caused no real prejudice. The appellant was also entitled to say on the basis of the undisputed facts that the merits of her claim were strong and therefore ought to be taken into account in deciding whether to extend time. If it were necessary to do so, the fact that it was not clear any alternative remedy would be available to the appellant should also be weighed in the scales. Accordingly, given that this was a case where unexplained delay had not caused any real prejudice and it was clear that refusing permission would defeat a strong claim, it was just and proper to extend time.
JUDGMENT LORD JUSTICE FLOYD: [1] This is an appeal in relation to an application by the defendant and appellant, Suriya Begum, for permission to bring a claim out of time under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Act’) in relation to the estate of Mohammed Yousaf Khan (‘Mr Khan’). Such claims …Continue reading "Begum v Ahmed [2022] WTLR 1189"