CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – IS THE INFANT OR MINOR CHILD A FAVOURED APPLICANT UNDER THE ’75 INHERITANCE ACT
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether the infant or minor child (a child under the age of 18) is a favoured applicant under the ’75 Inheritance Act in Will dispute and Will contest claims
What issues arise in relation to infant or minor children claiming financial provision under the Inheritance (Provision for Family and Dependants) Act 1975?
The main issues are these in Will dispute and Will contest claims, in very general terms:
• In England and Wales it is entirely legal and allowable for a parent to make a Will completing disinheriting his/her children, even when they are infants (under the age of 18), and entirely dependent on them;
• This complete freedom of “testamentary disposition” lead to unfortunate instances where those children were left destitute;
• From the earliest part of the twentieth Century the UK Parliament enacted a series of “Family Provision” Acts to give the Courts a discretion to step in to alleviate an “unreasonable” failure to make any provision or only a limited provision;
• The most recent incarnation of these is the Inheritance (Provision for Family and Dependants) Act 1975: www.legislation.gov.uk/ukpga/1975/63
We have previously canvassed (in earlier blogs – see for example the link to one such blog immediately below) how that statute works in relation to claims by adult children about which there is no embargo against bringing claims themselves, although they are limited by virtue of the assumption in Will dispute Will contest and Inheritance dispute claims that they should be capable of standing on their own two feet (or their needs are met by the state – benefits): www.willclaim.com/contesting-a-will-with-willclaim-com-what-is-so-special-about-adult-children/
Are infant or minor children favoured applicants under the ’75 Inheritance Act
There is a dearth of recent decisions which would help with this. However a relatively recent case was Ubbi v Ubbi (2018) EWHC 1396 (Ch): www.bailii.org/ew/cases/EWHC/Ch/2018/1396.html
In this case there was some commentary about the paucity of recent case law in relation to minor children, for example, at paragraph 12 of Master Shuman’s Judgment:
Both counsel inform me that there is little specific guidance in respect of claims by infant children.
The cause is probably straight-forward; these claims are difficult to defend and will usually turn on quantum only (the value of the sum sought in the Will dispute or Will contest claims). For example in Ubbi Master Shuman noted the following in paragraphs 17, 18 and 19 which probably warrant review in their entirety:
- Mr Holland refers me to a decision of Mr Justice Carswell in McIlveen v Patton  3 NIJB 35. This was an application by the children of the deceased for financial provision under the equivalent Northern Ireland statutory instrument. The children, twins, were 13 years old. The deceased had taken little interest in the children and only paid maintenance after the mother obtained an order against him. The court ordered each child to receive a lump sum of £10,000 out of the deceased’s estate. Mr Holland derives three propositions from this case: (i) the needs of an infant child rank very high in the order of priority and should normally rank well before the needs of other beneficiaries; (ii) their illegitimacy does not entitle them to a lesser sum than if they had been born legitimate; (iii) such lump sums as are ordered are properly to be considered as capitalised annual maintenance payments.
- As to the first proposition Mr Holland relies on a passage from Mr Justice Carswell at 51B,
“the claim of infant children is nevertheless expressed in terms of a moral claim in Tyler’s Family Provision (2nd edition) at page 151 in the following terms:
“infant children have probably the strongest moral claim upon the deceased’s estate. Few moral claims are as strong as the claim of one who has been brought into existence by the act of another and who is incapable of supporting himself.”
Although I am myself reluctant to phrase the proposition in terms of a moral claim, this view succinctly expresses the weight of the claim which an infant child of a testator has when one goes through the process of balancing the factors specified in Article 5 (1) of the 1979 Order. It demonstrates in vivid terms the fact that a child’s financial needs should rank very high in the order of priorities, and that in the assessment of those priorities they should normally rank well before the needs of other beneficiaries.”
- The Act does not provide for the financial needs of an applicant infant child to be elevated to a first or paramount consideration as, respectively, section 25 of the Matrimonial Causes Act 1973 or section 1 of the Children Act 1989 in the context of welfare provide. Often there may be competing interests between an applicant infant child and infant beneficiaries. These need to be balanced when considering all of the factors set out in section 3. I consider it unhelpful, as was suggested to me, that I should determine whose needs take priority: those of Jarnail or those of Mattia and Gabriele. Those needs must be considered in the round. 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.
The final part of paragraph 19 above is telling – “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”. In other words the court is going to step in to provide support where none or too little is given by one or more parents.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
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