While this long-protracted delay in bringing the claim forward is totally unprecedented, the judgment is also significant for the Master appearing to dispute the reasoning of a High Court Judge, who considered another out-of-time application under section 4 of the Act, just last month.
In Bhusate, the Court ruled that after the death of her husband back in 1990, the Claimant was ‘effectively powerless’ to do anything sooner due to the absence of agreement and engagement by her stepchildren.
Indeed, the Claimant’s husband’s children by his first wife, had obstructed the sale of her residential property and did nothing to break the impasse for some 23 years, essentially standing by until the claim was made. At this point, they opposed it on the basis of limitation, in order to deprive the former wife’s entitlement from the Estate.
Had the application not been granted, the Claimant would be left with no benefit from her deceased husband’s Estate, and would, to all intents and purposes, have been left homeless.
The Court heard the India-born Claimant did not speak, read or write English at the point her husband died and had no understanding of what her role as Administrator of the Estate required, nor her duties. Upon the death of her husband, she was entitled to a statutory legacy and one-half share of residuary estate in trust for her. The administrators, the Claimant and her step-daughter held the property on trust for the Estate. With the exception of one individual, the Claimant was said to have been subject to ‘implacable’ hostility from her step-children, despite trying in vain to get agreement to a sale price.
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Chief Master Marsh acknowledged the long period of delay for making a claim to the Estate, but it was not correct to say this made it inevitable that the application should be dismissed.
He added: ‘The breach of duty by her in failing to administer the Estate, was sufficient basis for her to be removed as an administrator but her level of culpability was negligible.’
The Court came to a different conclusion to another application last month under section 4 of the Act, where Mr Justice Mostyn denied permission to bring a claim in Cowan v Foreman.
In Bhusate, Chief Master Marsh said he had read the Cowan judgment prior to handing down his own ruling; considering that it was not right as regards to the overriding objective when considering the exercise of discretion under Section 4.
‘To do so, I suggest, involves conflating issues that, if they are related, they are at best distant cousins,’ he added.