HOW DISINHERITED INFANT CHILDREN CAN INHERIT
HOW DISINHERITED INFANT CHILDREN CAN INHERIT (and dispute a Will)
What can be done when infant children have been disinherited?
• In England and Wales it is perfectly legal (but immoral) for a father (or mother) to leave infant children nothing by the terms of their Wills
• If so, what can be done?
• The state has intervened in these unusual circumstances (not least to protect unrelated tax payers from this burden) in the form of the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63).
• By this, a disinherited child can pursue a claim for financial provision against the estate in the civil courts which are bound to have considerable sympathy with it. However, such a claim must be brought within 6 months of the date of the Grant of Probate, so steps should be taken to either conduct regular searches to ascertain the date or apply for a Standing Search with the Probate Registry (see https://www.gov.uk/search-will-probate).
An example – Ubbi and Ubbi v Ubbi (2018) EWHC 1396 (Ch) (https://swarb.co.uk/ubbi-and-anotheri-minors-v-ubbi-chd-27-jul-2018/)
This was a claim by the infant children of Malkiat Singh Ubbi who disinherited his children. He left an estate valued at £4.5M for probate purposes. His children were awarded £386,290.60.
• Plainly it is always going to be easier for infant children (than adult children for example) to achieve an award under the 1975 Inheritance
Act. They are more likely to be favoured applicants because of their vulnerability. However, in Ubbi above, it was this vulnerability which the court tested, finding many aspects of it wanting since the claim originally put to the Court was almost £850,000.
1. Housing costs – these were put at £335,680.97 but were considerably reduced
2. Private school fees – the claim for these was dismissed
• There were it seems inconsistencies in the evidence put forward on the children’s behalf which lead to a dramatic reduction in the level of their claims which the court would accept. This was a straight-forward forensic exercise on the part of the court the moral of the tale being that claims must be realistic and honest.
What alternative claims can be made?
• A claim can be made in the alternative against the legal validity of the Will. Unlike a claim for financial provision under the ’75 Inheritance Act, there is no time limit for bringing these claims but there is a de facto time limit since very late claims are weakened because the quality of the evidence needed to prove them is reduced and there might not be any point in bringing them if the estate has been distributed and dissipated.
• To dispute a Will in this way, the infant children must have an interest in the outcome of their claim – in other words, they must be beneficiaries under a previous valid Will, or if there is no previous Will, by the rules of intestacy. In general of course, they will be entitled to a share of the estate under the rules of intestacy (https://www.gov.uk/inherits-someone-dies-without-will).
• However, a dispute over the validity of the Will, is much more difficult to prove than a claim for financial provision under the ’75 Inheritance Act. There are limited grounds: it wasn’t properly executed (signed in front of two witnesses who also sign it); the deceased lacked sufficient mental capacity and understanding; there was undue influence. Lack of so-called “testamentary capacity” is very difficult to prove. See for example https://www.lawgazette.co.uk/legal-updates/wills-and-testamentary-capacity/5050883.article. One significant problem, which is not generally understood, is that a person who makes a Will (called a “testator”) can have sufficient capacity even if he or she has dementia. It all turns on the degree to which that condition has adversely affected mental capacity. Unfortunately, you don’t need much capacity as the legal test confirms:
1. An understanding of what the Will does;
2. A capacity to understand (rather than an actual understanding) of the extent and nature of the estate;
3. Identification of those who should perhaps inherit (with no mental condition that adversely affects it).
Further in relation to undue influence, this is even more difficult, because the person influenced is dead and no one else involved in the formation of the Will who benefitted from it, is likely to confess.
If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.