In our previous blog we discussed the case of Archibald v. Stuart and another. The case, in case you haven't been following along with this thrilling series of blogs, concerns Neil and Julie.

Julie, in particular has had a very difficult time of things. Firstly, her in-laws have passed away, and she and her husband Neil were unhappy with the actions of the trustees, and their entitlement under the estate. Therefore, having instructed solicitors they issued 1975 Act claims, following which Neil subsequently died.

There were a number of issues to be determined in Julie's case. The first was whether Neil's claim succeeded his death (it didn't), and the second point was whether Julie had standing to bring a claim in her own right (she didn't). Things were looking pretty rough indeed for Julie. However the third point to be decided in Julie's case was whether her claim should be allowed to be brought out of time.

Time limits to bring 1975 Act claims

Claims under the 1975 Act must be brought within 6 months of the date of the grant of probate. As with any case, the courts can give permission to have claims brought later than this deadline, but there normally needs to be a very good reason for them to exercise that discretion. This normally needs to be an issue such as severe medical incapability (you can’t bring a claim if you're in a coma!), a lack of awareness of the claim i.e. the claimant being reasonably unable to know they had a claim, or something of a similarly serious nature.

Julie’s case

Julie's claim was against both of her in-laws. Her mother-in-law, Rosemary, had died almost 8 years previously and the claim was 7.5 years out of time, and her father-in-law, Malcolm, had died approximately a year previously and the claim was 10 months out of time.

By the time the Judge came to considering the issue of limitation or time limits in this case, Julie’s claim was unfortunately already dead in the water, the judge having found that she had no standing to bring it. However the Judge decided to make a determination on the issue of limitation for both Neil and Julie, in case he was wrong about either Julie having no standing or Neil’s claim having not survived his death.

The Judge first went through Neil and Julie's reasons as to why they had not brought their claims earlier. These reasons are set out in full at paragraph 55 of the Judgment, but included in respect of Rosemary’s wishes, that Rosemary's estate was being used for the ongoing care of Malcolm and they wanted to respect Rosemary’s wishes, that family dynamics were "profoundly awry”, that they felt bullied by the executor/trustees, that there was coercion by the defendants, and they were poorly advised by solicitors who never advised them about their claims.

In respect of Rosemary's estate, the Judge concluded that none of these were good enough reasons to extend the limitation by such a long time. He commented that in respect of the assertion that they were happy for Rosemary's wishes to be abided when the income from Rosemary's estate was being used to care for Malcolm, but unhappy thereafter did not amount to any substantial grounds for the court permitting them to make a claim.

With regards to Malcolm's estate, the Judge commented that the position was more nuanced. This was partly because the delay was shorter, and partly because Neil and Julie also claimed they were not properly advised. The Judge commented that whether or not Neil or Julie had been badly advised by the solicitors was pertinent. However Julie failed to provide evidence of any such advice that she received from her solicitors, and therefore the Judge was unable to make any decision as to whether or not she was poorly advised.

Overall, the Judge concluded that he would not extend time in either claim against either estate.

Time limits generally

The are a couple of factors to take away from this case. The first is, as is the case in all claims, the claim should be issued promptly and within time wherever possible. Although the Judge acknowledged that no distributions had been made from Malcolm's estate, and that there would have been no prejudice to any of the parties involved in extending time, he still declined to extend the time for either Neil or Julie to bring their claims (which probably wouldn't have helped them anyway as the Judge had already decided that Neil's claim had died with him, and Julie had no standing to bring hers).

It is also pertinent to point out that where a limitation has been missed as a result of poor advice, it is often open to the Judge to determine that they will not extend time, because the claimant has another cause of action as against their solicitors. Where the claimant can be compensated in negligence, that is often enough to cause the Judge to refuse to exercise their discretion to extend time for them to bring their claims as against the other parties.

It is also highly relevant that the Judge considered the merits of the claims in considering his jurisdiction. A Judge is far more likely to extend time for a claim which has a reasonable prospect of succeeding, rather than extending time for a claim which would be a waste of the court's time hearing, because it is bound to fail anyway. The fact that Neil's claim had died with him and Julie had no standing was almost certainly a significant factor in the Judge's decision making process.

Julie and Neil's reasoning for bringing their claims out of time is also highly relevant. Family dynamics, allegations of bullying, and dissatisfaction with the trustees exercise of their discretion under the will trusts do not appear to hold much water as a reason why Julie and Neil couldn't have brought their claims any earlier. Indeed, it seems that the 1975 Act claim was effectively being used as a weapon against the trustees, in an attempt to force them to exercise their discretion in a way that Neil and Julie were happy with.

What might Neil and Julie have done differently?

It seems to me, that Neil and Julie would have been better advised to consider their alternative claims. 1975 Act claims are not a bargaining chip, by which trustees and executors can be forced to exercise their discretion in favour of one or more beneficiary to a discretionary will trust.

To the extent that a beneficiary considers that a trustee is exercising his discretion inappropriately, there are other ways of dealing with this. For example, Julie and Neil could have considered a claim for breach of trust, or an application under section 50 of the Administration of Justice Act to remove the executors and trustees in favour of ones that were doing a better job. It may be that Neil and Julie were advised that they didn't have grounds for such claims. Simply being unhappy with the way discretion is being exercise is not usually sufficient to amount to a breach of trust on behalf of the trustees, or a reason to remove them. Neil and Julie would normally need to show much more than this to succeed in any such application.

Conclusion

Overall, the case of Archibald v Stuart serves as a stark reminder of the dangers of getting involved in litigation, without proper advice as to the strengths of your claim.  The case highlights the risks of using litigation tactically as a bargaining tool, which in this case has likely left Neil and Julie with no remedy and a hefty costs order.

Finally, this case serves as a reminder to claimant's in litigation to ensure the claims are being brought within time wherever possible, because the court will not extend time unless there is a very good reason to do so.

Should you have queries about 1975 Act claims, please contact Kezia Brown by email or on 01494 893504.