The claim of Bhusate v Patel and others is at odds with the decision handed down in Cowan v Foreman and others [2019] EWHC 349 (Fam) two weeks before. In Cowan a widow was refused permission to bring her claim under I(PFD)A 1975 only 17 months out of time.

Mr Bhusate died intestate on 28 April 1990 with an estate valued at c.£137,000. A grant of letters of administration was taken out on 12 August 1991. The claimant, as the deceased’s wife, was entitled to a statutory legacy (then £75,000) and a life interest in half of the residuary estate. The only way in which she could receive her inheritance was if the deceased’s property was sold.

The claimant and the first defendant, who was one of the deceased’s daughters from a previous marriage, were unable to administer the estate. The deceased’s other children, who were the second to fifth defendants, continually blocked the sale of the property. Similarly, discussions in the early 1990s to capitalise the claimant’s life interest amounted to nothing. She continued to live in the property and the second to fifth defendants did nothing to break the impasse.

On 29 November 2017 the claimant issued proceedings in respect of a number of different claims, these included:

  1. proprietary claims in relation to the property;
  2. a claim for payment of the statutory legacy and capitalised life interest; and
  3. a claim under I(PFD)A 1975.The claimant’s proprietary claims (bound to fail) and claim to her statutory legacy and capitalised life interest (statute barred) were struck out.

However, the claimant was granted permission to make her application under I(PFD)A 1975 on the grounds that:

  1. The merits of her claim under I(PFD)A 1975 as the deceased’s wife were very strong.
  2. The delay in bringing the claim had been explained, she was effectively powerless to do anything without the agreement or engagement of her stepchildren.
  3. The stepchildren had obstructed the sale of the property and did nothing to break the impasse.
  4. If permission under s.4 I(PFD)A 1975 was not granted, she would have no other remedy and would be left homeless.

This case, alongside Cowan, is a reminder that cases are fact-specific and that the Court’s discretion under s.4 I(PFD)A 1975 is very wide. Important factors the Court will consider in any application for permission to issue out of time are the merits of the potential claim and the conduct of the parties. Until an authoritative decision is handed down by the Court, this area of law will remain somewhat unpredictable, which makes it all the more important to seek legal advice at an early stage.