We frequently receive enquiries from people wanting to know if a child is entitled to inherit something from their parents' estate. In this article inheritance lawyer Naomi Ireson looks at the rights of young children to make an Inheritance Act claim against the estate of their mother or father and how the courts value such claims.
Inheritance claim against father's estate
The recent case of Ubbi v Ubbi involved a claim that was brought on behalf of two young children by their mother against their late father's estate. The mother and father were not married.
Very few Inheritance Act claims brought by infant children have reached court, and even fewer in recent times, so this case is particularly illuminating.
The children’s father had died unexpectedly in 2015. His last Will predated the childrens' birth and left the entire estate to this wife.
The judge said that whilst 'testamentary freedom' is of course important, given the factual context he did not infer that the deceased had consciously chosen to exclude his two children from his estate. He therefore said that “the provisions of the will have limited bearing on the case”.
Children's claims defended by deceased's wife
The claims were defended by the deceased's wife. She accepted that the children were entitled to 'reasonable financial provision, but agreement couldn't be reached on how much of the estate they should receive.
The estate was valued for probate at £4.5 million, but the deceased's wife argued that the actual value was in fact £3.5 million. The principal assets were a pharmacy business which the deceased established with his wife, together with their marital home.
In order for the children to bring successful Inheritance Act claims they had to show:
1) they fall within a category of eligible applications under section 1 of the Act
2) that the disposition of the estate under the terms of the will does not make reasonable financial provision for them and
3) having regard to the factors set out in section 3 of the 1975 Act, that an order for provision should be made for them.
As infant children the court was also required to consider “the manner in which the applicant was being or in which he might expect to be educated or trained”. This was relevant to the claimants’ claim for provision for private school fees.
In assessing the level of any provision which should be made for the infant children and the amount of “maintenance” which they should receive the judge observed the finding in Ilott v The Blue Cross that “the level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case”.
The financial provision claimed for the children
The infant children sought a sum in excess of £848,000, whereas the wife valued the claim at just £254,000. The value of the claim and any award was to be largely determined by what, if anything, the children needed in respect of their housing needs, childcare costs and private education.
The court said. “the fact that the children were born within or outside of a marriage is irrelevant. How he or she was treated by the deceased, however, may be relevant”.
The wife asked the court to take account of how the case would be treated if pursued under the Children Act 1989. The court said the relevance of such was to provide general guidance only. She also sought to rely, when assessing the value of the claims, on the average costs of raising a child. The court rejected that approach.
Background to the case
The deceased and his wife met in 1987. She had a son from a previous relationship who the deceased treated as his own. In 1988 the deceased and his wife began to establish a pharmacy business, which is where his wife continued to work at the time of his death. In 1994 the deceased and his wife had a son who suffered with various disabilities and learning difficulties.
In 2000 the deceased and his wife purchased their marital home which they owned jointly, as joint tenants. The childrens' mother began working in the pharmacy business and began an affair with the deceased. The deceased’s wife became aware of their affair at a later date. In 2012 the deceased and the claimants’ mother had their first child, Mattia (the first claimant) and the deceased began to share his time between the marital home with his wife and their son and the claimants’ mother.
In 2013, the deceased moved the claimants’’ mother and Mattia into a flat which he jointly owned with his wife (and where they continued to live at the date of the hearing). The deceased later moved into the flat with them, leaving the marital home and in 2014 they had their second child, Gabrielle (the second claimant).
In 2015 the deceased’s wife sought legal advice and commenced divorce proceedings, obtaining a Decree Nisi on 28 January 2015. The divorce proceeding were not concluded at the time of the deceased’s sudden death in February 2015.
How the value of the inheritance claim was assessed
At the time of the hearing the claimants and their mother were living in the flat which was owned by the deceased and his wife. The claimants’ mother owned a two-bedroom flat of her own, along with a one bedroom flat and various interests in properties in Italy, from which she derived an income. Both households enjoyed a high standard living.
The claimants sought an award for their housing needs. Their case was that the deceased planned for them to move into a larger property in London with a garden and as such, sought the cost of a similar type of property. The court awarded a capital sum for housing of £70,950 to enable them to rent a four -bedroom property (to allow for a live-in nanny to enable their mother to continue to work full time) whilst the children were in primary education and to rent a three-bedroom property once the children were at secondary school (when the childcare costs would decrease).
The claimants sought provision for private education. Their mother said that she and the deceased had discussed both children having the benefit of private education. The judge was not however convinced that there was an expectation for private education and as such, he deemed an award for reasonable financial provision would not include such costs in this case.
The claimants sought childcare costs to cover the cost of a professional nanny. This was on the basis that their mother worked full time which provided the household with a good income. She had no support and was a single mother. This judge showed a significant amount of sympathy for the claimants’ mother. He said that where her income was to be taken into consideration in terms of the childrens' future provision, so should the costs of a professional nanny which would enable her to achieve such income. He said that an award should include the costs of a professional nanny rather than an ad hoc au pair and that this would be deemed to be “maintenance” in this case. He was not prepared to shave off amounts here and there as the defendant sought to do. He awarded a capital sum of £234,234 for the costs of childcare.
Overall the claimants were awarded a total of £386,290.60.
How we can help you
If you would like to know if a child is entitled to inherit something from the estate of their mother or father then call our free legal helpline on 0808 139 1599 or email us at firstname.lastname@example.org