It sometimes becomes necessary for infant children to pursue a claim against the Estate of their deceased parent. These claims are usually brought under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).

Typically these claims arise in the following situations

Birth: if the child was born after their Parent prepared a Will and consequently the terms of their old Will stand resulting in their child receiving nothing.

Remarriage: many people are not aware that marriage revokes a Will. Therefore, unless the Will has been prepared in contemplation of marriage, the ceremony will revoke the Will leaving the Estate to be distributed under the Intestacy Rules. This can result in the unforeseen division of the deceased’s Estate depriving their child of the majority of their parent’s wealth.

No Will: if a parent dies without a Will then the Intestacy Rules will apply. If the Estate is worth less than the Statutory Legacy (currently £250,000) the child receives nothing and even if it is worth over £250,000 the child currently only receives half of the additional amount (and that half is shared equally with any other siblings if they are not an only child) which could be insufficient to meet their needs.

Insufficient Provision: if a parent has made some provision in their Will for the child but it is not sufficient to meet the child’s needs, particularly if their needs have increased (more than any other siblings, potentially) by the time of the Deceased’s death.

Deliberate Exclusion: if a parent has deliberately excluded a child from a former relationship from their Will so that only the partner / spouse and children from the second relationship benefit from the Estate.

In all of these circumstances, unless the beneficiaries of the Estate agree to vary the Will / Intestacy Rules to provide for the child voluntarily, then a claim will need to be pursued by the child against their parent’s Estate under the 1975 Act.

In reality, the surviving parent will normally bring the claim in the child’s name as they won’t be able to do it themselves as they are classed as a minor. The surviving parent would become a litigation friend for the child and pursue the claim in their name. In fact a litigation friend need not be the surviving parent and in some circumstances could be another relative or family friend of the child if appropriate.

Inheritance (Provision for Family & Dependants) Act 1975 examples

An example of a recently reported infant child case under the 1975 Act is Ubbi v Ubbi (2018). This claim was brought by two minor children, Mattia and Gabriele Ubbi, through their mother Ms Corrado as litigation friend, against the Estate of their father Mr Ubbi with whom Ms Corrado was in an unmarried relationship (the Court finding that this was no barrier to the children bringing a claim). The father’s Will had been made before the children’s birth and when he remained in a relationship with his estranged wife, Mrs Ubbi, with whom he had a disabled child. He remained married to Mrs Ubbi at the date of his death despite being in the process of getting a divorce from her and had failed to update his Will. As such Mattia and Gabriele received nothing from his Estate. Mrs Ubbi recognised the children should receive something but she valued this at around £250,000 based upon their needs. Ms Corrado sought a figure closer to £848,000 from an Estate worth around £3 million.

Having weighed all of the factors in the balance the judge awarded the children £386,290. Their needs were found to include a housing need and childcare needs for a professional nanny but not private school fees as there was no expectation that they would have been educated privately. It is perhaps to be noted that Mrs Ubbi continued to be a carer for her own disabled child with the Deceased and that this would have been a factor weighed in the balance by the Court in attempting to balance the needs of both Mattia & Gabriele against Mrs Ubbi.

Complicated family relationships

This case shows how complicated family relationships can lead to children not receiving provision from a parent’s Estate, even when they are minors, and demonstrates the importance of parents updating their Wills regularly as their relationships change. It also highlights the need for a surviving parent / relative to seek immediate legal advice on behalf of minor children following their parent’s death. If reasonable financial provision is to be made for them under the 1975 Act then a claim must be brought within 6 months of the Grant of Representation.
These cases, more than most, will often be suited to early offers of settlement and / or resolution by mediation but in order to do that, without first starting court proceedings, early instructions to a Solicitor will be crucial.