Probate law

Human RightsInheritance (Provision for Family and Dependants) Act 1975.

Discretion for Court to extend CPR time limits

Probate practitioners might be excused for wondering whether their particular area of practice is safe from the current explosion of cases taking European Court of Human Rights points.

The answer seems to be that nowhere is immune.

In the not too distant future there may well be a challenge to the human rights credentials of the new category of 'cohabitee' added to the Inheritance (Provision for Family and Dependants) Act 1975.

Cohabitees can only bring a claim under the Act if they lived for a period of two years ending with the death of the deceased 'as the husband or wife of the deceased' which appears to exclude same-sex couples.

Parliament certainly intended to exclude the possibility of applications from the survivors of same-sex relationships but query whether such a limitation can validly be maintained in the light of ECHR.

The recent case of George Barker v Joyce Jane Casserly (1) Christina Theresa Casserly (2) Kevin Casserly (3) Deborah Anne Casserly (4) LTL 24 October 2000 is an example of a human rights point being taken in the context of an Inheritance Act claim.

The deceased (C) died on August 31 1998 and probate to her estate was granted on March 30 1999.

The applicant (B) was applying under s.1(1)(e) as a person maintained by the deceased.

He issued his claim form on September 29 1999, one day before the end of the statutory limit of six months from the date of the grant.

Under the Civil Procedure Rules 7.5 the claim form has to be served within four months of the date of issue.B sent the relevant documents to the first defendant's last known address and to her solicitors.

The first defendant had moved abroad.

The third defendant was temporarily abroad when the documents were sent, but his solicitors returned the acknowledgement of service form.

A district judge extended the validity of the claim form in case it had not been served within four months of issue.

The third defendant argued that the claim form had not been served within four months and that the district judge had no power to extend its validity and period for service.

Rimer J rejected this argument.

The objective of the CPR was to achieve justice.

The first and third defendants must have known of the existence and nature of the claim, which had come to their attention within the meaning of the rules.

The defendants were seeking to evade issue by recourse to a procedural technicality.

It was not relevant that the power to extend the period of service under CPR 7.6 was not referred to in CPR pt 8 because the CPR practice direction 8 confirmed that CPR pt 7 contained rules and directions applicable to all claims including CPR pt 8 claims.It would have been extraordinary and contrary to the claimant's rights under ECHR for there to be no power for the court to extend the period for service.

The district judge had acted in accordance with the overriding objective of the rules in making an order to extend the time for service.