Minor children and 1975 Inheritance Act Claims
The starting point in any estate claim is that a person making a Will (a testator) can leave their money and assets to anyone as they please. However, the Inheritance (Provision for Family and Dependants) Act 1975, commonly known as the Inheritance Act 1975, allows the courts to re-distribute an estate where it is deemed necessary on the application of those who consider that they should be but are not adequately provided for or are not provided for at all.
The court will take into consideration the following:
- the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
- any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
Can minor children make a claim against an estate?
The Inheritance (Provision for Family and Dependants) Act 1975 allows a child of the deceased, regardless of their age, to make a claim against the estate. A child of the deceased means not only a biological child (legitimate or illegitimate) but also an adopted child and any person who was treated by the deceased as a child of the marriage or civil partnership. A minor child; i.e. a child under the age of 18, has a stronger claim than an adult child because they are financially dependent.
The litigation friend
Any minor child who brings a claim under the Inheritance Act must appoint a “litigation friend”. A litigation friend is an adult who is authorised to conduct proceedings on behalf of the child and has no adverse interest in the proceedings to that of the child. The litigation friend is commonly a family member or a legal guardian.
A litigation friend will instruct and liaise with the solicitor acting for the child, and although the solicitor will take instructions from the litigation friend, the case will be pursued in the child’s name.
Agreeing to be a litigation friend carries a financial responsibility. The litigation friend must be able to meet any costs incurred in the case on the child’s behalf. However, claims involving a minor child generally have good prospects of success and if the claim is successful, the estate will bear the legal fees incurred by the litigation friend.
Acting as a litigation friend also imposes a significant duty to the child. The litigation friend should therefore understand the child’s needs and make decisions that are in the child’s best interests – this includes agreeing any settlement on behalf of the child. That said, any settlement involving a minor child must be approved by the court before it can be binding and this applies whether or not proceedings have started.
Settlement
As minor child 1975 Act claims are strong claims, a vast number of these claims reach a settlement. We recently represented a minor child who was the First Claimant in a claim against their father’s estate. The Second Claimant was represented by another firm of solicitors, and in conjunction, we achieved a court approved settlement for our respective clients.
Together, the First and Second Claimants in this case were two of the Deceased’s minor children. The Deceased had left his estate solely to his adult siblings and had not made provision for his minor children.
Our client (the First Claimant) was supported financially by the Deceased and had been receiving money each month towards her maintenance. The Deceased played an active part in our client’s life and had accepted his obligations and responsibilities to continue to give this support by entering into a parenting plan. Our client therefore had a very strong claim for her maintenance needs during the likely period of her education up to university age, and for her housing needs.
The parties consequently negotiated a settlement agreement that sufficiently provided for both of the Claimants’ needs and ensured that the First and Second Claimant’s legal costs could be recovered from the Deceased’s estate. The settlement was then approved upon application to the court.
Despite the Claimants having been left nothing in the Deceased’s Will, they obtained a larger share of the estate than the beneficiaries of the Will who were Defendants to the claim.
The court’s discretion
As demonstrated in the case example above, the court has wide discretion in these kinds of claims, and at all stages of the claim as it progresses. They are able to weigh up the financial needs of the person(s) making the application for provision from the estate, against the needs of any existing person named in the Deceased’s Will and can ultimately depart from that Will, even if it is not deemed invalid in any way, if the circumstances deem it necessary.
In the case of Ubbi v Ubbi [2018] EWHC 1396 (Ch), the trial judge stated:
“Each case will be determined on its own facts. However, the fact that a claim is brought by an infant child is a vital part of the factual matrix. Unless the child has independent means he or she is reliant on financial, physical and emotional support from others. In the vast majority of cases that will be provided by his or her parents either voluntarily as part of their parental role or by the imposition of an order by the court for financial support and/or child arrangements”.
Act quickly
If you suspect that your child or children may have grounds to bring a minor child 1975 Act claim, you should seek legal advice as quickly as possible because there is a time limit of 6 months from the date of grant of probate to bring a claim.
Specialist probate solicitors
Clarke Willmott has a specialist team of contested probate solicitors who can advise you on all types of estate claims. We have extensive experience in acting for executors, trustees, beneficiaries, and parties bringing or defending claims against an estate.
If you have any questions or would like to discuss how to contest a Will, please get in touch.
This article was written by Ellie Bond – Litigation Paralegal at Clarke Willmott
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