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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Chancery Division Decisions >> Aiken v Blaney & Anor [2019] NICh 5 (9 April 2019) URL: https://www.bailii.org/nie/cases/NIHC/Ch/2019/5.html Cite as: [2019] NICh 5 |
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Ref: DEE10945
Neutral Citation No: [2019] NICh 5
Ex Tempore Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 09/04/2019
DEENY LJ (sitting as a judge of the Chancery Division)
"We are instructed that Ciara, Bronagh and Michael wish to surrender their interest under their father's estate (as set out in A-D above) to their mother your client. They agree to execute any documentation required to effect the transfer of their beneficial interest to their mother."
"Where after the commencement of this order a person dies domiciled in Northern Ireland and is survived by any of the following persons:
(a) the wife or husband of the deceased;
(b) a former wife or former husband of the deceased who is not remarried;
(c) a child of the deceased;
(d) any person….. who in the case of any marriage to which the deceased was at the time a party was treated by the deceased as a child of the family in relation to that marriage; and
(e) any person …who immediately before the death of the deceased was being maintained either wholly or partly by the deceased;
that person may apply to the court for an order under Article 4 on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy or the combination of his will and that law is not such as to make reasonable financial provision for the applicant."
For other parties it is merely enough to receive maintenance.
"An application for an order under Article 4 shall not, except with the permission of the court, be made after the end of the period of 6 months from the date on which representation with respect to the estate of the deceased is first taken out."
"(a) The discretion is unfettered by any statutory provisions but must be exercised judicially in accordance with what is good and proper."
So that is strong support for this being an unfettered discretion to do what is good and proper.
"(b) The time limit is a substantive provision laid down by a statute and not a mere procedural one which can be extended with the indulgence generally accorded to procedural time limits. The onus is on the applicant to show that there is a substantial case for the court to exercise its discretion to extend the time limit."
Pausing there again, therefore, the court in this case is presented with a fairly long delay, not by any means the longest that the courts have been asked to address, but a fairly long delay approaching two years from the date of the grant of probate which is the initiating date under Article 6. It is also, as Mr Orr points out, a much longer period from the actual death of the late Michael Aiken. It seems to me there are pointers to there being a substantial case for the reasons I have mentioned regarding reasonable financial provision and a case where the unusual circumstances of the perhaps not wholly unexpected death of Michael Aiken and then the tragically early death of his son two years later are relevant. To return to the guidelines:
"(c) Consideration must be given to how promptly after the time limit has expired that permission is being sought.
(d) It is relevant whether or not any negotiations had been commenced within the time limit.
(e) It is relevant whether or not the estate has already been distributed.
(f) It is relevant whether if permission to extend this time is not granted the applicant would have any form of redress against anyone else."
"to show that he has an arguable case, a case fit to go to trial, and that in approaching that matter the court's approach is rather the same as it adopts when considering whether a defendant ought to have leave to defend in proceedings for summary judgment."
"In this instance the plaintiff has an arguable case. This case does not fall at either end of the spectrum ranging from unarguable to very meritorious. The estate has not been administered and his sister shares have not fallen into possession. There is nothing to suggest they have taken any steps such as selling their remainder interests which would have caused them or any successor entitled significant prejudice if the matter were to proceed. There clearly were some family discussions from which the plaintiff hoped to achieve some sort of amicable resolution of his complaints about the adequacy of the will's provisions. The sisters clearly must have understood that he was not happy with the terms of the will of the deceased. While in context of ordinary civil litigation the fact that negotiations are taking place is not normally a good reason not to issue proceedings to avoid a limitation defence. Family disputes represent a somewhat different type of case. Time and again the court stresses the desirability of family members resolving their disputes out of court and a court involved in such family disputes can understand the reluctance of family members resorting to litigation if this can be avoided. In this case, I consider, that on balance the court should grant an extension of time to allow the matter to proceed."
"Taking all the factors in the case together, I would not permit the appellant to make her claim. I give full weight to the potential merits of the claim and to the fact that the estate has not yet been fully distributed and that it is likely that sufficient capital could be found to fund whatever award the appellant might reasonably expect without disturbing any gifts that have already taken effect. I also remind myself that the evidence does not establish that the appellant was advised about the possibility of a claim under the Act when she consulted solicitors in 2006/7. Against these factors must be set not just the fact of the very substantial delay in bringing proceedings but the history during the period since the deceased died. This is not a claim which has been provoked by a particular event, be it something for which the respondents were responsible (as in the late discovery in McNulty of the true value of the land which the defendants had concealed) or something extraneous (such as the dramatic fall in interest rates in Stock v Brown). It appears much more likely that the appellant, who had hitherto understandably not wished to litigate with her family, eventually decided that proceedings were appropriate."
"Before leaving the relevant legal principles, it is in my judgment also relevant that the limitation period which has now expired in this case is one imposed under the Inheritance Act. It is both of a special type in the sense that it confers upon the court a discretionary power to permit a claim to be made out of time on well-settled principles and it exists for a particular purpose, namely to avoid the unnecessary delay in the administration of estates to be caused by the tardy bringing of proceedings under the Act and to avoid the difficulties which might be occasioned if distributions of an estate are made before proceedings are brought, requiring possible recoveries from beneficiaries if those proceedings once brought are successful "
"Of course, the discretion is not "unfettered". … In fact, I doubt whether the exercise is correctly to be framed as one of "discretion" at all."