Bhusate v Patel [2019] EWHC 470 (Ch)

A 67-year-old widow sought permission to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, 25 years and 9 months out of time. Despite the extraordinary delay, the court granted permission, finding compelling grounds including her vulnerability, the stepchildren's obstruction, and that the estate remained undistributed.

Facts

Mr Kashinath Bhusate died intestate on 28 April 1990, leaving his third wife (the claimant) and six children. Letters of administration were granted on 12 August 1991 to the claimant and her stepdaughter Mangala (the first defendant). The principal asset was 62 Brookside Road, valued at the time at £135,000 (now approximately £850,000). Under the intestacy rules, the claimant was entitled to a statutory legacy of £75,000 plus interest, and a life interest in one half of the residuary estate.

The claimant, born in India, had very limited education, left school at 11, spoke almost no English on arrival in the UK in 1980, and was 33 years younger than her husband. After Mr Bhusate’s death she was left caring for their nine-year-old son (the sixth defendant, Arvind), underwent surgery, and faced hostility from her stepchildren (other than Mangala). Attempts to sell the property in 1993-94 failed because the stepchildren rejected offers. By late 1994, dealings between solicitors ceased and an impasse set in lasting 23 years. The estate was never administered and the claimant continued living in the property.

Proceedings were issued on 29 November 2017. In a September 2018 judgment, Chief Master Marsh struck out the claimant’s proprietary claims and held her claim to the statutory legacy and capitalised life interest was statute-barred. A professional administrator was appointed. The present application concerned permission under section 4 of the Inheritance Act 1975 to bring the claim out of time.

Issues

The central issue was whether the court should exercise its discretion under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to permit the claimant to bring her claim 25 years and 9 months after the six-month limitation period had expired. Subsidiary issues included:

• Whether the claimant had an arguable claim assessed as at the date of the hearing, or whether she needed to have had a claim at the expiry of the limitation period.
• Whether the claimant’s breach of duty as an administrator should defeat the application on public policy grounds.

Arguments

Claimant

Mr Dubbery submitted the claimant had an arguable case under section 3 of the Act, pointing to her obvious need for housing and income, the absence of competing needs on the part of the defendants, her substantial contribution to the family, the length of the marriage, and that on hypothetical divorce she would have expected no less than half the matrimonial home. He relied on section 3(5), arguing the court must consider matters as they stand at trial.

Second to Fifth Defendants

Mr Wilson QC submitted the claimant faced two insurmountable obstacles: the inordinate delay due to her “indolence”, and the fact that the current predicament arose from her own breach of duty as administrator. He invited the court to draw on analogies with ex turpi causa, the clean hands maxim (citing Grobbelaar v News Group Newspapers), and principles of contractual construction from Cheall v APEX. He argued section 3(5) required the court to look back to whether a claim would have succeeded within the limitation period.

Judgment

Chief Master Marsh granted permission to bring the claim out of time.

The legal framework

The Court adopted the seven guidelines endorsed by Black LJ in Berger v Berger [2013] EWCA Civ 1305, comprising the six considerations of Sir Robert Megarry V.-C. in Re Salmon and a seventh concerning arguability. The Court emphasised that the discretion is unfettered and must be exercised judicially, and that the longer the delay, the more compelling the grounds must be. The Court rejected any requirement for a “trigger event” to engage the discretion, noting that section 4’s words could “hardly be more neutral”.

Application of the guidelines

On guideline 7 (arguable case), the Court preferred the claimant’s submission that the position is assessed at the date of the hearing, not retrospectively. The claimant had strong merits: she had obvious housing and income needs, the defendants had no competing needs, the estate comprised the matrimonial home she had occupied for 38 years, and on hypothetical divorce she would have received a substantial share. The estate had never been distributed, which the Court held could weigh in the claimant’s favour rather than being merely neutral.

Rejecting the defendants’ submissions

The Court rejected the analogies advanced by Mr Wilson as “detached from the reality of this application”. The claimant could equally invoke the equitable maxim that equity looks on as done that which ought to be done. The Court found no indolence or brazenness in the claimant’s conduct.

Findings on the delay

The Court made detailed findings: the claimant was unsophisticated, could not speak or read English, was culturally unequipped to deal with business matters, was poorly served by being appointed administrator, and was profoundly affected by her husband’s death while caring for a young child. The stepchildren obstructed a sale of the property at an agreed price and then did nothing for 23 years. The claimant was “effectively powerless” to progress matters. While she was technically in breach of duty, her culpability was negligible.

Compelling grounds

The Court concluded the claimant had shown “compelling reasons” why permission should be granted: her claim was very strong on the merits; the delay was explained by her powerlessness and the defendants’ obstruction; the defendants had stood by for 23 years and then taken a limitation point to deprive her of her entitlement; and refusal would leave her homeless with no remedy.

Afterword

Chief Master Marsh declined to apply the approach in Cowan v Foreman [2019] EWHC 349 (Fam), stating it was not right to have regard to the CPR overriding objective or the Denton relief from sanctions principles when exercising the section 4 discretion, as this would conflate issues that are “at best distant cousins”.

Implications

The decision demonstrates that, even in cases of extraordinarily long delay, the court retains a genuinely unfettered discretion under section 4 of the Inheritance Act 1975 to permit a claim out of time where compelling circumstances exist. The case is notable as no reported authority had previously granted permission after a delay approaching 25 years and nine months.

Key principles reaffirmed or clarified include:

• The Salmon/Berger guidelines are not exhaustive and guideline 1 (judicial exercise of discretion) supervenes the others.
• A “trigger event” is helpful but not essential; section 4 imposes no such requirement.
• The arguability of the claim (guideline 7) is assessed at the date of the hearing, not retrospectively to the limitation period, so a claimant may succeed even where there was no claim originally.
• The absence of distribution of the estate can weigh positively for a claimant, not merely neutrally.
• The CPR overriding objective and Denton principles are not applicable to the section 4 discretion.

The decision is significant for vulnerable surviving spouses, particularly those facing cultural, linguistic, or educational barriers, and those confronted by hostile family members who obstruct estate administration. It signals that the court will scrutinise the real-world dynamics of family disputes and will not permit beneficiaries who have themselves delayed and obstructed to exploit a claimant’s technical breaches of duty. The decision is, however, heavily fact-specific; the extreme delay was excused by an unusual combination of vulnerability, obstruction by co-beneficiaries, and the absence of estate distribution. It should not be read as weakening the general rule that claimants must act promptly.

Verdict: Permission granted. The Chief Master held that the claimant had demonstrated compelling reasons why the court should exercise its discretion under section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 in her favour, permitting her to bring her claim 25 years and 9 months out of time.

Source: Bhusate v Patel [2019] EWHC 470 (Ch)