Time Limits
Author | Nasreen Pearce |
Pages | 33-59 |
Chapter 3
Time Limits
3.1 INTRODUCTION
Time limits have always applied to claims for financial provision from a
deceased’s estate, ever since the right to make such claims was introduced by the
I(FP)A 1938. The Act limited the time within which an application could be made
to 6 months from the issue of a grant of representation, with a provision for time
to be extended with leave of the court. The Intestates’ Estates Act 1952 introduced
a provision for the court to extend the time limit of 6 months in specified
circumstances.
The Family Provision Act 1966 repealed the earlier provisions and gave the court
a general discretion to extend the limitation period. This provision is now
incorporated in I(PFD)A 1975, s 4, which provides that:
an application for an order under section 2 of the 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.
It is thus essential that a claim for an order under I(PFD)A 1975, s 2 is issued
within the prescribed time limit.
However, pursuant to the Inheritance and Trustees’ Powers Act 2014, as from 1
October 2014, s 4 has been amended to enable an application under the Act to be
made before the grant of representation is taken out. Civil Procedure Rules 1998
(SI 1998/3132) (CPR), r 57.16 has also been amended to provide that where no
grant has been obtained, the claimant may make an application without naming a
defendant and apply for directions. In any case, where the deceased died before 1
October 2014, the previous provisions of s 4 continue to apply. The provisions of
the amended s 4 and the new procedural rules are considered at para 3.3.1.
34 A Practitioner’s Guide to Inheritance Act Claims
3.2 COMMENCEMENT OF THE PERIOD OF 6 MONTHS
I(PFD)A 1975, s 23 provides that, in considering when representation with
respect to the estate of a deceased person was taken out, a grant limited to settled
land or trust property is to be left out of account; and a grant limited to real estate
or to personal estate is to be left out of account unless a grant limited to the
remainder of the estate has previously been made or is made at the same time.
The Act makes no other provision for determining the date for the commencement
of the 6-month limitation period, nor does it make any reference to grants which
are limited for a particular purpose. Thus, the effects of these grants for the
purposes of the time limit under the Act are unclear. They are dealt with briefly
below.
3.2.1 Grant ad colligenda bona
A grant of letters of administration ad colligenda bona is applied for when it is
necessary to prevent loss to the estate because there is no one authorised to
administer it. The grant is limited to the purposes of collecting and getting in and
receiving the deceased’s estate and doing such acts as may be necessary to
preserve the estate, until further representation is granted. The grant ceases when
the object for which it was granted has been achieved or a full grant has been
issued.
It is submitted that, by reason of its limited nature, a grant ad co lligenda bona
does not operate to start time running in respect of claims under the I(PFD)A
1975.
3.2.2 Grant pending determination of claim
Under Senior Courts Act 1981, s 117, a limited grant of letters of administration
pending determination of a probate claim commenced in the Chancery Division
may be issued as a matter of urgency when there is a dispute which gives rise to
a probate claim, for example, to determine the validity of a testator’s will. In such
cases, the administrator has all the righ ts and duties of a general administrator
except that they are subject to the immediate control of the court and must act
under its direction. The object of this grant is to enable the administrator to collect
and safeguard assets pending the outcome of the claim. Once the claim has been
determined, the grant terminates and the person entitled as a result of the probate
claim may take out a grant of probate or administration.
In this case, too, it is unlikely that time will begin to run in respect of any claim
under the I(PFD)A 1975, but it would be prudent, if it is intended to make a claim
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