An end to standing still in Inheritance Act claims?

Claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 must be issued within 6 months of the date of the grant of probate in the deceased’s estate. This is referred to as the limitation period. Failure to bring a claim within the limitation period requires an application to the court for permission, explaining the reasons for the delay in bringing the claim.

The case of Cowan v Foreman [2019] EWHC 349 (Fam) has recently put solicitors on high alert following the criticism of standstill agreements by Justice Mostyn. A standstill agreement is when the parties agree to place the limitation period on hold while they attempt to resolve matters. This means that should the claimant then go onto issue a claim the defendants cannot raise the limitation period as a defence. The permission of the court to bring the claim out of time is still required, but if the parties are in agreement then the courts have generally granted such permission.

The deceased in this case, Michael Cowan, was diagnosed with a brain tumour in February 2016 and died on 9 April 2016, leaving an estate worth approximately £16 million. Under his will, he left some monetary gifts to his son, daughter-in-law and stepsons, left all his personal possessions to his wife (Mary Cowan) and put in place two trusts of which Mary had the benefit. A grant of probate was obtained in December 2016.

Mary issued a claim against her husband’s estate on 8 November 2018, nearly 17 months out of time; the deadline for doing so being June 2017. Mary argued the lack of outright provision in the will left her insecure and at the mercy of the trustees, despite receiving regular monthly payments from the trusts of $17,250 (which was subsequently increased to $26,250).

During the proceedings, there was evidence that Mary and her sons clearly knew about Mary’s potential claim and the limitation period attached to it. However, in December 2017 discussions were entered into regarding a standstill agreement, which was agreed in January 2018. This was unusual as in most cases a standstill agreement would be entered into within the limitation period.

Despite submissions to the court that standstill agreements were common in such claims, to avoid the need to issue claims unnecessarily, Mostyn J notably held this to be a practice “that should come to an immediate end”. He felt strongly that it was not “for the parties to give away time that belongs to the court”.

Mary’s claim was dismissed on the basis that she did not demonstrate good reasons for justifying the lengthy delay, nor did her claim have sufficient merit, in order for it to be allowed to proceed to trial.

Standstill agreements are used by solicitors to avoid costly and stressful litigation and it follows that the decision in Cowan v Foreman casts doubt over their use in Inheritance Act claims. Mostyn J’s view is that such claims should be issued within the 6 month limitation period, with permission then requested from the court to stay the proceedings while the parties pursue negotiations. A “stay” is a temporary halt in the court proceedings.

It is understood that following the recent decision of Bhusate v Patel [2019] where an Inheritance Act claim brought 25 years out of time was given permission to proceed, Mary’s solicitors have now sought permission to appeal. Therefore, it is unlikely to be the last we hear on the use of standstill agreements. It also shows how each claim is very different and can turn on the specific facts of the case.

If you are considering an Inheritance Act claim or are faced with the task of defending one, please contact our Contentious Probate team to discuss it. Emma Saunders is a Senior Associate specialising in contentious probate matters and she can be contacted on 0191 226 3293 or at

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