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Widow granted right to challenge husband's will despite time delay

Posted: 14th January 2020   In: Wills, Trusts and Probate

A widow has been allowed challenge her husband’s will, which could leave her homeless, even though she began taking legal action out of time.

The husband had died in 2015. His only asset was the house where the widow had lived since 1993. She was aged 60 and disabled.

In a 2014 will, the husband had appointed his daughter as his personal representative and left her his entire estate.

Probate was granted in April 2016; the six-month time limit for bringing actions under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) expired in October that year.

In 2016, the daughter issued proceedings for possession of the house. The widow responded saying that she was entitled to seek financial provision under the Act and to challenge the validity of the will on testamentary capacity grounds.

However, she didn’t begin proceedings until February 2018, more than a year out of time.

The judge noted that the claim had substantial merit and that the widow would be rendered homeless were the house to be sold. However, she then ruled that there was no reasonable explanation for the delay in bringing the claim and refused permission.

That decision has been overturned by the Court of Appeal. It held that the judge’s decision was flawed because, although she had been bound to take into account the absence of a good explanation for the delay, she had failed to analyse the effect of that delay.

She had plainly been wrong to discount completely the fact that the widow risked losing her home.

The widow had not been legally represented by a solicitor during the period when the time limit expired, and while there had been significant delay, it had caused no real prejudice to the daughter.

In addition, based on undisputed facts, the merits of the widow’s claim were strong and should be considered.

She had lived in the house since the 1990s, she was disabled, and no financial provision had been made for her in the will. The court could use its discretion to let her pursue her claim.

Please Benedict Smith/Nicki Denton Masih if you would like more information about the issues raised in this article or any aspect of wills and probate.

[2019] EWCA Civ 1794
SURIYA BEGUM v SHAKILA AHMED (PERSONAL REPRESENTATIVE OF MOHAMMED YOUSAF KHAN, DECEASED) (2019)
CA (Civ Div) (Floyd LJ, King LJ, Henderson LJ) 28/10/2019
 
Posted by: Nicki Denton-Masih
Private Client
Luton Office