Mediation has always been advisable for cases brought under the Inheritance (Provision for Family and Dependants Act 1975), which enables family members and dependents to claim a share of the deceased’s estate where inadequate provision is made in the Will or under the intestacy laws.

This is not only for all the usual reasons for choosing mediation such as saving the costs, stress and uncertainty of a trial as well as the possibility of saving or restoring strained family relationships (the latter perhaps being more of an aspiration than expectation), but also because the Act gives the court very wide discretion as to whether or not to make an award (and, if so, the extent of the award) out of the estate.

This wide discretion, while helping to achieve fairness to competing claims on a deceased’s estate, makes it especially difficult for professional advisers to predict the outcome of a claim and to advise their clients accordingly.

A recent decision of the Chief Master (In the Estate of Mr Kashinath Vithoba Bhusate deceased, [2019] EWHC 470 (Ch)), the latest in a series of applications in a hard-fought dispute within that family, illustrates this perfectly.

Section 4 of the Act provides a time limit of six months from the grant of probate or letters of administration for a claimant to bring an action under the Act, the underlying reason being so that an estate can be safely administered within a reasonable time of death. However, section 4 also gives the court permission to extend this period. Such extensions are not unknown, especially where the other parties to the claim have not been prejudiced by the delay and where the estate remains largely unadministered.

In Bhusate the delay was 25 years and nine months, a delay which the Chief Master described as: “If not unprecedented, it is certainly very unusual”. Notwithstanding this extraordinary delay, it seems that the Master, in granting permission, based his judgment on the following factors:

1. The claimant, the deceased’s widow and his third wife, married Mr Bhusate in India when she was 28 and he was 61. They moved to the UK in 1980 (back to the UK, in Mr Bhusate’s case as he had originally come here in about 1957).
2. The claimant, who had received limited education in India, leaving school at the age of eleven, could speak only basic and broken English, could read very little English, understanding only very simple words.
3. Mr Bhusate and the claimant adopted what was described as a ‘traditional’ approach to their marriage: he looked after all matters of business for the household; she stayed at home and went out on her own only rarely.
4. Mr Bhusate died intestate in 1990. The claimant and one of Mr Bhusate’s children by his first marriage took out a grant of letters of administration in 1991. (In a recent separate hearing a professional administrator was appointed in their place.)
5. The only material asset of the estate was a modest house in London, valued as at date of death at £135,000, although presumably worth rather more now.                                                                                                                          6. At the time of Mr Bhusate’s death, their only child was nine years old and shortly afterwards the claimant had to undergo surgery.
7. With one exception, the five other children of the deceased by Mr Bhusate’s first marriage (who have all been successful in life and are aged between 54 and 72), were extremely hostile to the claimant and had effectively blocked the sale of the house in the years following their father’s death by turning down offers which had been received for it, deeming them too low. Since then, and until recently, they had shown little interest in having the estate administered and it has remained unadministered.
8. The sale of the house at the time would have allowed the claimant to receive what she was due under the intestacy (i.e. a statutory legacy of £75,000 and a life interest in half of the estate).
9. The claimant (now aged 67) has continued to live in the house, with the one child of her marriage to Mr Bhusate who is now 38, his wife and their small child. If her claim under the Act, which she issued in 2017, were to be dismissed as out of time the claimant would be homeless and impoverished, her other possible proprietary claims over the house and estate being time barred under the Limitation Act.

It remains to be seen whether the Chief Master’s decision (and also the recent judgment of Mostyn J in Cowan v Foreman and others [2019] EWHC 349 (Fam), in which an application to bring a claim seventeen months out of time was refused), will be appealed.

What these cases illustrate, however, are:
(a) the very wide discretion that the courts will apply to claims brought under the Act;
(b) the consequent difficulty in advisers being able to predict the outcome;
(c) the advantages that mediation, before expensive court hearings are undertaken, can bring especially in estates of modest value where legal costs may equal or outweigh the value of the estate.

The judgment in Bhusate records that a mediation was held in October 2017, but the parties were unable to reach agreement and the claim was issued shortly afterwards. Bitterly contested family disputes where feelings run high are never easy to resolve, although sometimes a skilled and experienced mediator may be able to find a way of helping the parties find a resolution with which they can live and move on.

Participants in such mediations, if they genuinely wish to settle, must choose not to be tied to history, look at their situation afresh and adopt a pragmatic mindset. In many cases they will understandably find this hard, but it is a necessary pre-cursor to a successful outcome. Discussing their feelings with an independent third party in the protected, confidential environment of a mediation can often help. Mediation in these cases is always worth trying.