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08th August 2019

Court of Appeal allows late 1975 Act claim

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The Court of Appeal has overturned the High Court decision in the case of Cowan v Foreman, handed down in February this year, where a widow’s application to bring her claim for reasonable financial provision against her late husband’s estate 17 months out of time was refused by the Judge. The Deceased, Mr Cowan, who was responsible for bringing black bin liners to the UK, left an estate of £30m to a charitable foundation. He had signed a Letter of Wishes stating that his wife should be the principal beneficiary of the trust but she received no outright provision and was dependent on the trustees exercising their discretion in her favour.

Mr Justice Mostyn found that the widow’s claim had no good prospects of success and did not excuse her delay in bringing her claim despite the fact that a standstill agreement was in place confirming that none of the parties to the action would seek to assert that the claim should not proceed because it was being brought out of time. Mr Justice Mostyn was scathing about the common practice of using standstill agreements in 1975 Act claims saying: “It is not for the parties to give away time that belongs to the Court”.

Whilst Mr Justice Mostyn is correct that ultimately, it is the Court, and only the Court, that can allow a claim to proceed out of time, his comments caused much concern amongst contentious probate practitioners who often seek to minimise legal costs for their clients through the use of standstill agreements to allow the parties an opportunity to explore settlement during a longer period than the initial 6 months following the grant of Probate being issued.

The Court of Appeal has allowed the widow’s claim to proceed regardless of the fact that court proceedings were not issued within the 6 month time limit. The Court of Appeal rejected the suggestion that leaving a widow at the mercy of the trustees was reasonable and confirmed that there is a place for standstill agreements in 1975 Act claims which are “often highly distressing and sensitive cases and in which a decision to issue is otherwise to be made whilst bereavement is still very raw and emotions high”.

The case highlights the need to take expert advice when setting up a trust under a Will in order to minimise the possibility of claims. It has also supported an approach which encourages parties to settle claims without the need for court proceedings to be issued, which is to be welcomed.


For more information about this case or 1975 Act claims generally please contact Lucinda Brown on 01223 532721 or by email to lucindabrown@hewitsons.com