Berger v Berger & Others
29 October 2013
 EWCA Civ 1307
Court of Appeal, Civil Division (Moses, Black, Gloster LJJ)
The appellant had been married to the deceased for 36 years. Both had children from previous marriages. By his will the deceased left the appellant a life interest in the residue of his estate and the right to reside in their former family home. He also gave the trustees of his will power to appoint capital to the appellant if they thought fit. The residue consisted of shares in a private company approximately £2.89 million. The executors and trustees of the will were the appellant and the deceased’s two sons.
The deceased died in June 2005. Probate of his estate was obtained in January 2006. The appellant’s advisors had indicated to her step-sons soon after the deceased’s death that she was concerned that she had not been left sufficient by his will to meet her needs. But she only began to explore an Inheritance Act application seriously in the summer of 2011 and made no such application until June 2012.
The principles to be applied were not disputed. The court had an unfettered discretion but one that was to be exercised judicially in the light of what was right and proper. The appellant needed to show sufficient grounds for permission to be granted. The court would consider whether (1) the appellant had acted promptly in seeking an extension of time; (2) negotiations had begun before the time limit expired; (3) the estate had been distributed; (4) the appellant had other available remedies and (5) whether the appellant had an arguable substantive case.
The Court of Appeal upheld the decision of the first instance judge to refuse permission (although for different reasons). The crucial factor was that the appellant could not clearly identify any extraneous factor or change of circumstances which explained why the appellant had begun to explore an application under the Act only in 2011.
This case shows that a long and unexplained delay in making an application under the Act can be fatal even if the applicant has a good case. Michael King of XXIV Old Buildings acted for the successful respondents.