Late applications and the 1975 Act

20 January 2020 | Applicable law: England and Wales

Appeal in Thakare v Bhusate

In March 2019 Chief Master Marsh allowed Mrs Bhusate to bring her 1975 Act claim 25 years and nine months out of time, setting a new benchmark.

The previous record of six years had been set by another widow in Stock v Brown back in November 1993.

The Chief Master's decision sparked considerable commentary in the legal press and in briefings issued by solicitors and barristers. Many commentators chose to overlook the very fact specific nature of Mrs Bhusate's circumstances to suggest that a miasma of uncertainty had descended upon practitioners in the probate arena. Such Jeremiah-like anguish was fuelled by contrasting the decision with Mostyn J's refusal in Cowan v Foreman to allow the widow Mrs Cowan to bring her claim 17 months out of time, most of which had been covered by a standstill between the parties.

The defendants, four of Mrs Bhusate's step children, appealed. That is notwithstanding the Court of Appeal commending the Chief Master's analysis when unanimously overturning Mostyn J's decision in Cowan v Foreman.

Further vindication of Chief Master Marsh has now come in the detailed and comprehensive High Court Judgment dismissing the appeal against his decision.


Mr and Mrs Bhusate married in India in 1979. He was 61 and had already lived in the UK for over 20 years. It was Mr Bhusate's third marriage and he had five children by the first (the eldest child being senior to the new Mrs Bhusate by some five years).

By contrast, Mrs Bhusate was 28. She had never left India. She had limited education. She had escaped an arranged marriage (the validity of her divorce is, some 40+ years later, now disputed). She speaks limited English.

They returned to the UK in 1980. Mr Bhusate died intestate some 10 years later in April 1990 leaving a widow, five adult children from his first marriage, and Arvind, then nine, his son of the third marriage.

Mrs Bhusate and Mangala (the only step-child not to oppose Mrs Bhusate's claim) took out letters of administration. Other than two very modest accounts, containing c£1,500, the only asset was the matrimonial home in Golders Green then valued at £135,000. They instructed solicitors to assist with the administration. In the process Mrs Bhusate capitalised her life interest. But no agreement was reached over sale of the property. As the Judge records, 'Essentially, the administration of the estate remained in limbo'.

Mrs Bhusate and Arvind have continued ever since to live in the property. Other than desultory conversations, the step-children never sought to enforce any interest.

Ultimately, with the property deteriorating, Mrs Bhusate came to Withers for advice. A letter of claim and period of negotiation ensued. Following a failed mediation (three and a half months after the letter of claim), Mrs Bhusate issued proceedings seeking financial provision from her husband's estate and, in the alternative, asserting a beneficial interest in her husband's property.

History of proceedings

To bring her financial provision claim, Mrs Bhusate needed permission. But, at a summary judgment hearing, the court first dealt with Mrs Bhusate claims to a beneficial interest in the property. Those claims were dismissed. Moreover, the step children succeeded in arguing that her entitlement on intestacy was now time barred. They did, however, fail in an attempt to establish that the property in fact belonged to the estate of their late mother (who died in 1971).

So Mrs Bhusate arrived at the hearing of her application for permission with no entitlement at all to her husband's estate and therefore facing homelessness if permission was not forthcoming.

Chief Master Marsh duly gave permission.


The step-children advanced a number of grounds (although, by the time of the hearing, some had fallen away following the Court of Appeal decision in Cowan v Foreman).

At the appeal itself, the Judge reminded himself that he was not conducting a fresh hearing. He had to be satisfied not merely that he would have reached a different conclusion but that the Chief Master Marsh had actually exercised his discretion wrongly.

Most of the argument focused on the step-children's assertion that the rules of intestacy had made reasonable financial provision for Mrs Bhusate at the time of their father's death. They contended that it was her 'fault' that she had lost this entitlement and that she should not be allowed to bring a claim when she wouldn't have succeeded (they said) in doing so when letters of administration first issued. By focussing on 'fault' the step-children sought to circumvent the statutory provision that says 1975 Act claims must be decided on facts at the time of the hearing (rather than at the date of death).

In his decision, on every point in dispute, the Judge concluded (i) that it was inappropriate to interfere with the Chief Master's exercise of a discretion, and (ii) that he would have reached the same conclusion in any event.


Mrs Bhusate's success should mean that she is free to pursue her claim for financial provision.

However, counsel for the step-children said in open court that they intend to dispute the validity of Mr and Mrs Bhusate's 1979 marriage. So this may drag on for some time to come …

The Judgment can be found here.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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