Suriya Begum v Shakila Ahmed (Personal representative of Mohammed Yousaf Khan, deceased)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lady Justice King,Lord Justice Henderson |
| Judgment Date | 28 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1794 |
| Docket Number | Case No: B2 2018 2940 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 1794
Lord Justice Floyd
Lady Justice King
and
Lord Justice Henderson
Case No: B2 2018 2940
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
HHJ McCahill QC
BM80 156A
Royal Courts of Justice
Strand, London, WC2A 2LL
David Stockill (instructed by Silks) for the Appellant
David Mitchell and Imogen Halstead (instructed by Smith Partnership) for the Respondent
Hearing date: 9 October 2019
Approved Judgment
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 are required to be brought within 6 months of the grant of probate unless the court extends the time. District Judge Ingram (“the District Judge”) and HHJ McCahill QC (“the Circuit Judge”) both refused the appellant the necessary extension by orders dated 27 July 2018 and 31 October 2018 respectively. Lewison LJ granted permission for this second appeal on 15 February 2019.
The facts
Mr Khan died on 22 March 2015, the only asset within his estate being a house at 22 Lombard Avenue, Dudley (“Lombard Avenue”) where the appellant has lived since 1993. The appellant is some 60 years of age and is disabled, having lost one of her legs. She claims to be Mr Khan's wife by virtue of a ceremony in Pakistan in 1991, and it is not disputed for the purposes of this appeal that she is his wife. By his will dated 11 February 2014, Mr Khan appointed his daughter, Shakila Ahmed, the claimant in the action and respondent to this appeal, as his personal representative, and left the entirety of his estate, after payment of his debts and expenses, to her. Probate in respect of the will was granted on 11 April 2016, meaning that the 6 month time limit expired on 10 October 2016.
On 9 June 2016 solicitors instructed by the respondent wrote making a demand for possession of Lombard Avenue. On 23 June 2016 solicitors for the appellant, Silks, responded, referring to the appellant's entitlement to financial provision under the Act, and also to a challenge to the 2014 will on the grounds that Mr Khan lacked testamentary capacity at the relevant time.
Invalidity of the 2014 will would bring into play a previous will of Mr Khan made in 2004. The 2004 will appointed both the appellant and respondent as executors. Its provisions are to some extent unclear, but, if it is valid, it appears to give the appellant a right to reside at Lombard Avenue (conditional on repairing and other obligations) but with the right to an absolute half-share of the proceeds of sale if she ceases to reside there.
Silks' letter of 23 June 2016 was replied to on 27 June by solicitors acting for the respondent, Smith Partnership (“SP”). SP noted that “your client intends to bring a claim under the 1975 Act” and “you are also in the process of investigating the Deceased's capacity to execute the Will”. They also indicated that they would refrain from commencing possession proceedings in the circumstances “of these impending claims”. SP did not hear further from Silks, however.
It appears that, instead of continuing to instruct Silks, the appellant had authorised a family friend, Mr Mirza, who was not a solicitor, to act on her behalf. The correspondence with Mr Mirza continued from July 2016, but without any claim under the Act being articulated further. On 10 October 2016, the 6 months period under the Act expired. Three weeks later, on 1 November 2016, SP wrote to the appellant saying that the correspondence had not been able to make progress, and setting a deadline of 15 November 2016 for the appellant to leave the property.
On 30 November 2016 the respondent issued possession proceedings in respect of Lombard Avenue. Silks were apparently reinstructed by the appellant shortly thereafter. On 4 January 2017 Mr Grimes of Silks made a witness statement. He referred to difficulties in communicating with and taking instructions from the appellant, given that her written and spoken English were poor. The statement also referred to the possibility of a defence based on lack of testamentary capacity and to seeking agreement for a stay of the possession proceedings pending further investigations. A defence (with a statement of truth signed by Mr Grimes) was served on 24 April 2017 alleging that the will was invalid and of no effect because of lack of testamentary capacity, but not referring to any claim under the Act. The defence averred the existence of a previous will, of which the appellant was then unable to locate a copy, and in the alternative that, if Mr Khan died intestate, the appellant as his widow was the sole beneficiary of the estate. These contentions were not, however, reflected in a counterclaim. This was a procedural error: see CPR 57.8(1). This, and other procedural shortcomings caused the respondent to apply to strike out the defence in August 2017. Silks indicated that they would apply on behalf of the appellant to file a counterclaim.
Mr Grimes left Silks as of 22 August 2017, and the conduct of the case was placed in the hands of another solicitor, a Mr Donkin. At a case management conference in the possession proceedings on 9 October 2017, District Judge Sehdev enquired whether any application had been made for provision under the Act. He recorded in his order that no such application had been made, no doubt reflecting what he had been told. However, in all likelihood prompted by that exchange, an Amended Defence and Counterclaim was served on 23 October 2017, seeking to make a claim under the Act and seeking permission to make it out of time. That was another procedural error, because pursuant to CPR 56.17, such claims must be commenced by Part 8 claim form. In her reply and defence to counterclaim the respondent challenged the entitlement to bring a claim under the Act, pointing out that it was “now 12 months out of time”.
A freestanding application under the Act was made by Part 8 claim form sent to the court on 2 February 2018.
The law
Section 2 of the Act gives the court a power to make provision for an applicant out of the estate of a deceased person where it is satisfied that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant. The section gives the court wide powers as to the provision which it may make, including an order “for the transfer to the applicant of such property comprised in that estate as may be so specified”. The classes of person who may make such an application are defined by section 1 of the Act to include the spouse of the deceased as well as any person who immediately before the death of the deceased was being maintained, either wholly or partly, by him.
Section 4 of the Act imposes the restriction on the timing of such applications:
“An application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out (but nothing prevents the making of an application before such representation is first taken out).”
A personal representative is protected by section 20 of the Act from liability for having distributed the estate after the end of the period of six months on the ground that he ought to have taken into account the possibility that the court might grant an extension of time. The Act therefore contemplates that an extension of time might be granted even where assets within the estate have been distributed.
The Act, as has been observed more than once, gives an unfettered discretion to the court to extend the time. It gives no express guidance on how the discretion is to be exercised, but it is a discretion which must be exercised in accordance with its statutory purpose and context. In Nesheim v Kosa [2006] EWHC 2710 Briggs J (as he was then) identified the nature and purpose of the time limit and the power to extend as follows:
“… it is in my judgment also relevant that the limitation period which has now expired in this case is one imposed under the Inheritance Act. It is both of a special type in the sense that it confers upon a court a discretionary power to permit a claim to be made out of time on well-settled principles and it exists for a particular purpose, namely to avoid unnecessary delay in the administration of estates to be caused by the tardy bringing of proceedings under the Act and to avoid difficulties which might be occasioned if distributions of an estate are made before proceedings are brought, requiring possible recoveries from beneficiaries if those proceedings once brought are successful.”
It follows that the discretion should not normally be exercised in a way which undermines the purpose of the time limit. It will always be material to ask whether the bringing of the claim out of time will cause delay in the proper administration of the estate, or have the potential to interfere with distributions which have already been made.
We were shown a number of authorities where the courts have identified other principles and evidential factors as being of relevance to the exercise of the discretion. These included re Salmon (deceased) [1981] 1 Ch 167; re Dennis [1981] 2 All ER 140; Smith v Loosley (unreported) Court of Appeal Transcript 1 June 1986; Perry v Horlick (unreported) Court of Appeal Transcript 18 November 1987; re B [1999] Ch 206; ...
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Julie Dawn Colbourne v Simon Mark Cooke
...such an order inherently under section 4 of the Act. Mr Rudall referred the court to dicta in the Court of Appeal case Begum v Ahmed [2019] EWCA Civ 1794 in which Lord Justice Floyd, at paragraph 13 stated: “ The Act, as has been observed more than once, gives an unfettered discretion to t......