Contesting a Will on behalf of Minor Children

In the recent case of Ubbi v Ubbi 2018, the High Court has given useful guidance with regard to how the Section 3 factors under the Inheritance (Provision for Family and Dependants) Act 1975 should be applied in the case of claims brought by minor children.

Children and reasonable financial provision
Under the 1975 Act certain categories of applicant can bring a claim on the basis the deceased’s Will fails to make reasonable financial provision for their maintenance.  Children of the deceased are one such category.

Malkiat Ubbi’s Last Will made no provision for his minor children Mattia and Gabriel (aged 6 and 4 by the time of the trial).  This Will had been made prior to their birth.  The executor and residuary beneficiary of the Estate, Susan was Malkiat’s surviving spouse.  Susan had sought advice about a divorce and had presented a Divorce Petition on the grounds of adultery.  Bianca the mother of Mattia and Gabriel had an ongoing relationship with Malkiat.  Jarnail (Susan and Malkiat’s child) was aged 23.  Susan had a child Jesse from a previous relationship.

Section 3 factors
The claims were brought on behalf of Mattia and Gabriel. When determining such applications the Court is required to have regard to the factors set out in Section 3.  That is to say:

• Financial resources and needs of the applicant now or likely in the foreseeable future so in this case Bianca’s assets as the children’s mother.
• Financial resources and needs of any other applicant now or likely in the foreseeable future. There were no other applicants in this case.
• Financial resources and needs of any beneficiary now or likely in the foreseeable future. Susan’s son Jarnail suffered paralysis and learning difficulties and was dependent on his mother and would remain so.
• The obligations and responsibility of the deceased towards the applicants or beneficiaries. The deceased had obligations to all his children.  Both families had a high standard of living.
• The size and nature of the net Estate; in this case £3,371,034.68.
• Any physical or mental disability of any applicant/beneficiary. This arose indirectly in terms of the impact of Jarnail’s needs on Susan.
• Any other matters including conduct which may be relevant. There were issues here as to whether or not Susan had reconciled with Malkiat.  The Judge found they had not.
• There is a further matter to consider in the case of infant children namely the manner in which the applicant was being or might be expected to be educated or trained. Given their ages neither applicant was yet in education at the time of Malkiat’s death on 8^th February 2015.  On the facts the Judge found no evidence of a firm intention that either child be privately educated so made no allowance for school fees.

Provision was made for housing and child care costs subject to a deduction of 65% contribution from Bianca who had conceded this albeit attempts were later made to withdraw the concession.

The case shows how the Section 3 factors in the 1975 Act will be applied by the Court in a claim by minor children.  There was little previous guidance in this area.

By Sarah Payne, Litigation Solicitor at Cambridge solicitors Barr Ellison

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