Roman Kubiak gives an update on Thakare v Bhusate [2020] EWHC 52 (Ch), in which the High Court dismissed an appeal from the deceased’s stepchildren, allowing a widow’s application to issue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975) – 26 years out of time.

Roman Kubiak

Section 4 applications seeking permission to bring out-of-time claims under the IPFDA 1975 seem to be like buses. That isn’t, of course, to suggest that they’re cumbersome, unreliable and prone to having people jump on board. Following a relatively quiet period, the past 12 months has, however, seen quite the spate of such cases, including the first instance decision in Thakare ([2019] EWHC 470 (Ch)), Cowan v Foreman [2019] EWCA Civ 1336 and Begum v Ahmed [2019] EWCA Civ 1794. All three involved applications for permission from the wives of the respective deceased husbands.

The appeal

Having taken into account the Court of Appeal decisions in both Cowan and Begum, the appellants in Thakare ultimately appealed on seven grounds.

  1. Chief Master Marsh failed to exercise his discretion judicially and fairly at first instance.
  2. The conclusions reached by the Chief Master were incorrect.
  3. The Chief Master was wrong to find that Mrs Bhusate acted “promptly” with reference only to the period of time following her letter of claim.
  4. The Chief Master was wrong to treat as relevant the fact that the estate had not been distributed.
  5. The Chief Master failed to place appropriate weight on Mrs Bhusate’s failure to mitigate her position, for instance by not claiming her original entitlement on intestacy.
  6. (Leading on from the above.) In fact, the estate had made reasonable financial provision for Mrs Bhusate originally. Thus, it was not the intestacy itself but rather Mrs Bhusate’s actions which may have led to a lack of reasonable financial provision.
  7. The Chief Master incorrectly apportioned blame on the appellants for failing to compel Mrs Bhusate to administer the estate.

Grounds for dismissal

Sitting in the High Court, the judge, Mr Edwin Johnson QC, first reviewed the relevant historical background and context leading up to the appeal. He also considered: his jurisdiction; the relevant authorities, including the now well-known guidelines set out at paragraph 44 of Berger v Berger [2014] WTLR 35; and the fact that, ultimately, the court has an “unfettered discretion” to permit claims out of time.

In relation to this appeal, the judge noted that his consideration was limited to (not whether permission ought to have been granted in the first place, but) whether the original exercise of the court’s discretion was itself wrong.

Ultimately, the judge dismissed the seven grounds of appeal, holding the following points.

1. Judicial discretion

The first ground was general and ultimately comprised the remaining six grounds. Thus, in dismissing those, it would follow that Chief Master Marsh did not fail to exercise his discretion correctly.

2. Conclusions

The conclusions reached by the Chief Master were correct.

3. Period of delay

The Chief Master did in fact consider the period of delay prior to the letter of claim and, having done so, still considered that there was a reasonable explanation for the delay.

4. Non-distribution of the estate

The Chief Master had not treated this factor with as much relevance as the fourth ground (see above) alleged and, in any event, he was entitled to treat it as relevant.

5. Mrs Bhusate’s failure to mitigate her position

Chief Master Marsh did consider whether Mrs Bhusate would have recourse to any other remedies if her application was dismissed and found that her position would have been “catastrophic” if her application failed.

6. Reasonable financial provision

Mr Johnson QC was unconvinced by the appellant’s claim that the estate had made reasonable financial provision for Mrs Bhusate originally. This was essentially an argument that Mrs Bhusate did not have an arguable case – which the judge felt she did.

7. Blame for failing to compel Mrs Bhusate to administer the estate

Chief Master Marsh was free to decide how to deal with the question of blame and what weight to attach to such blame. Mr Johnson QC could not interfere with that, albeit he did not feel that the Chief Master apportioned blame to the extent that it was relevant to his decision.

Takeaway points

So what does this latest case actually mean for practitioners? And does it change the position in relation to applications under section 4?

Well, in truth, no. Citing the notable cases of 2019, Mr Johnson QC made clear that a lengthy delay without a reasonable explanation is still likely to result in an application being refused.

That said, if there was any doubt after Cowan and Begum, Thakare reaffirms that – provided there is a reasonable explanation for the delay – the key factors the court is likely to take into account are:

  1. the prospects of the claim’s success
  2. the likely prejudice caused if the application is permitted or refused.

This is the case almost regardless of how long the delay lasts or (particularly) where it takes place, even if it is in part attributable to the action or inaction of those seeking to defend a section 4 application.