Inheritance Act Claim Out of Time: Permission to Bring a Late Claim
The Inheritance Act 1975 gives eligible applicants 6 months from the grant of probate to make a claim. Miss that window and you need the court’s permission — which is far from automatic. Here is what claimants and executors need to know.
The 6-Month Window and What Happens After
Death
Day 0Time limit does not run from death — it runs from the grant of probate or letters of administration.
Grant of probate / letters of administration issued
Months 1–12+ after death typicallyThe 6-month clock starts ticking. Enter a standing search (PA1S) before the grant is issued so you receive notification and can act promptly.
6-month window — in time to claim as of right
Months 1–6 after grantIssue the claim form (N2) in the Chancery Division or county court. Enter a caveat if the estate hasn't been administered yet to prevent distribution before your claim is heard.
After 6 months — permission needed
Month 7 onwards after grantApply to court for permission to bring a late claim. Court balances: length of delay, reason for delay, whether estate distributed, strength of claim, prejudice to beneficiaries.
Estate distributed — hardest position
After full distributionCourt very reluctant to grant permission once beneficiaries have received and spent the estate. s20 IA 1975 allows clawback but enforcement is extremely difficult in practice.
The Court’s Permission Test (Re Salmon Factors)
Length of delay
Courts distinguish between days/weeks over the deadline and months/years. A claim filed 3 weeks late is treated very differently from one filed 3 years late.
Reason for the delay
Ignorance of the law is generally not sufficient. But: if solicitors gave negligent advice about the time limit; if the claimant genuinely did not know of the death or grant; if ongoing negotiations caused the delay — courts give weight to these.
Whether negotiations were ongoing
If the parties were actively trying to settle and the claimant delayed issuing to allow negotiations to continue, courts are more sympathetic. Document all correspondence carefully.
State of the estate (distributed or not)
If the estate has not yet been distributed, granting permission causes less injustice. If distributed, the court must weigh the difficulty of clawback against the claimant's position.
Strength of the underlying claim
A weak claim on the merits is less likely to get permission. Applicants should address the merits briefly in the permission application to show the claim has a real prospect of success.
Prejudice to beneficiaries
Beneficiaries who have changed position (sold assets, spent inheritances) will suffer real prejudice from a late claim. This weighs against permission.
Key cases: Re Salmon [1981] Ch 167; Berger v Berger [2013] EWCA Civ 1305; McNulty v McNulty [2002] WTLR 737.
Who Can Bring an Inheritance Act Claim?
| Applicant | Standard | Notes |
|---|---|---|
| Surviving spouse / civil partner | Reasonable financial provision (no maintenance limit) | Highest standard. Court considers whole life together. |
| Former spouse / civil partner (not remarried) | Maintenance standard | Must not have remarried or formed new civil partnership. |
| Cohabitant (2 years immediately before death) | Maintenance standard | Must have lived as husband/wife or civil partner for 2 years — cohabiting less than 2 years not eligible. |
| Child of the deceased | Maintenance standard | Includes adult children, illegitimate children, and adopted children. |
| Stepchild / child of the family | Maintenance standard | Must have been treated as a child of the family by the deceased. |
| Person maintained by the deceased | Maintenance standard | Deceased must have been making a substantial contribution immediately before death. |
Frequently Asked Questions
What is the time limit for bringing an Inheritance Act claim?
Under s4 Inheritance (Provision for Family and Dependants) Act 1975, a claim for financial provision must be brought within 6 months of the date on which a grant of probate or letters of administration is first extracted (issued). This is the date of the grant — NOT the date of death. If the estate is administered without probate (e.g. small estate with no grant), the time limit does not run until a grant is issued. The 6-month period is a strict limitation — it is not extended by correspondence, negotiations, or the fact that the claimant was unaware of the grant. Miss it and you need court permission to proceed.
What happens if you miss the 6-month deadline?
After the 6-month period expires, the claimant cannot proceed with an Inheritance Act claim without the court's permission under s4(3) IA 1975 (and CPR Part 57). The court has a discretion to grant permission — it is neither automatic nor routinely refused, but the claimant must make a positive case for it. The application is made to the Chancery Division (High Court) or county court (for smaller estates). Key point: even if the estate has not been distributed, a late claim is harder to pursue because beneficiaries may have been paid and assets dissipated. If distribution has been completed, the court is extremely reluctant to permit a late claim — the practical difficulties of clawback are enormous.
What test does the court apply in deciding whether to grant permission for a late claim?
The leading case is Re Salmon [1981] Ch 167 (Megarry V-C), and subsequent cases including Berger v Berger [2013] EWCA Civ 1305. The court considers a non-exhaustive list of factors: (1) How long the delay: a claim 7 months late is treated very differently from one 3 years late; (2) Whether the delay was caused by the claimant or their advisors — if solicitors gave negligent advice about the time limit, the claimant may have a professional negligence claim which affects the balancing exercise; (3) Whether negotiations were ongoing — if the parties were trying to reach a settlement, courts are more sympathetic; (4) Whether the estate has been distributed — once assets have been paid out to beneficiaries, granting permission causes injustice to them (though not distributed assets can still be the subject of a claim); (5) The strength of the underlying claim on its merits — a weak claim is less likely to get permission; (6) Whether the beneficiaries would be prejudiced — particularly if they have changed position (spent the money, sold property) in reliance on the estate being fully distributed.
Can an executor distribute the estate to defeat a potential Inheritance Act claim?
An executor who knows of a potential Inheritance Act claim (or has reasonable grounds to suspect one) distributes the estate at risk. Under s20 IA 1975, if financial provision is ordered and the estate has been distributed, the court can require beneficiaries to repay up to the amount necessary to fund the order. However: (1) This is a personal obligation on the beneficiaries — if they have spent the money, enforcement may be difficult; (2) The executor may face a claim for breach of duty if they distributed knowing a claim was pending; (3) Practical protection for executors: take a legal indemnity from beneficiaries before distributing; place a standing search or wait 6 months from the grant before distributing. The safest course if a claim is threatened: obtain written consent from all potential claimants (which may need to be binding) OR apply to court for a Benjamin order (Re Benjamin [1902]) authorising distribution. A consent order is usually more practical.
Who can bring an Inheritance Act claim and what provision can they ask for?
The categories of eligible applicants under the IA 1975 are: (1) Spouse or civil partner — can apply for 'reasonable financial provision' without restriction (the highest standard); (2) Former spouse or civil partner (who has not remarried/re-partnered); (3) Cohabiting partner (lived with the deceased for 2 years immediately before death as husband/wife or civil partner); (4) Child of the deceased (including illegitimate, adopted, and stepchildren in some circumstances); (5) Person treated as a child of the family; (6) Person financially maintained by the deceased immediately before death. For all applicants except the surviving spouse/civil partner, the standard is 'such provision as would be reasonable in all the circumstances for the applicant to receive for his maintenance' — this is maintenance, not a share of the estate. Orders can include: periodic payments, lump sums, transfer of property, settlement, acquisition of property.
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