Can minor children make a claim against an estate?

Yes.  The Inheritance (Provision for Family and Dependants) Act 1975 allows a child of the deceased (no matter what their age) to make a claim against his or her estate.  A child of the deceased is defined not only as a biological child (legitimate or illegitimate) but also includes adopted children and any person who was treated by the deceased as a child of the marriage or civil partnership.  A minor child; i.e. under the age of 18 has a stronger claim than an adult child because they are financially dependent.

In what circumstances would a minor child bring a claim? 

A few examples include:

• The deceased made no will which means the rules of intestacy apply. This may result in the child receiving nothing or not enough to meet their needs.
• The deceased could have made a will which included the child, but it was not enough provision to meet their needs.
• The deceased made a will but excluded a child from a previous relationship.
• Marriage revokes a will (not everyone knows this). So, the deceased parent could have married and as a result, disinherited their child from a previous relationship without intending to do so.  

What does the minor child have to prove?

They would have to prove they were financially dependent on the deceased and that reasonable financial provision had not been made for them under the terms of the deceased’s will or under the rules of intestacy.

Samantha Hirst – Contentious Probate Solicitor

Under the Inheritance Act, the Court will take into consideration what is known as the Section 3 factors when deciding whether reasonable financial provision has been made for the child.  These are:

1. The financial needs and resources of the child
2. The financial needs and resources of any other applicant
3. The financial needs and resources of any beneficiary of the estate, both now and in the foreseeable future;
4. Any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;
5. The size and nature of the estate;
6. Any physical or mental disability of any applicant or beneficiary;
7. Any other conduct.

The case of Ubbi v Ubbi [2018] is a good example of how the Courts apply the Section 3 factors in claims brought by minor children.

At the time of his death the deceased, Mr Ubbi, was married to Susan.  They had a son together who was over the age of 18 but had disabilities which meant he was not able to live independently.  Mr Ubbi also had two other children as a result of an affair, Mattia and Gabriel (aged 6 and 4 on the date of the trial).

Mr Ubbi died suddenly.  He had a will which made no provision for Mattia and Gabriel because it was made prior to their births.  He left his entire estate, around £3.3 million, to his wife and son.  Mattia and Gabriele brought a claim against their father’s estate by their litigation friend and mother Bianca.  As part of his judgement, Master Shuman split this children’s maintenance requirements into three main categories:

• Housing costs – the children’s needs were for a four-bedroomed property until the eldest child reached 20 years old.
• Childcare – if the children’s mother was to continue to work full time then the cost of private childcare should be awarded.
• Education costs – the children’s maintenance needs should not include private education costs. There was no evidence to suggest the deceased would have paid for them to have private education.

The court awarded Mattia and Gabriele approximately £1.4m from the estate of their late father for their maintenance.

How can a minor child bring a claim? 

Any child under the age of 18 who brings a claim under the Inheritance Act must have an appointed “litigation friend” who is usually a family member or guardian.  The litigation friend must have no interest in the proceedings adverse to that of the child.

A litigation friend will instruct the solicitor to act for the child.  Although the case will be pursued in the child’s name the solicitor will take instructions from the litigation friend.

Agreeing to be a litigation friend is a big responsibility.  It is important they understand the child’s needs and make decisions that are in the child’s best interests throughout the case – 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; whether that is before or after court proceedings start (see below).

Are there any time limits for a child to bring a claim? 

A claim made against an estate under the Inheritance Act must be made within 6 months from the date of the Grant of Probate (or letters of administration if the deceased made no will). It may be possible to get the permission of the Court to bring a claim out of time, if there’s a good reason.

Who will be expected to pay the costs of bringing the claim against the estate? 

A litigation friend must be able to satisfy the Court that they can meet any costs incurred in the case on the child’s behalf.  But there is a very often a high chance of success in a claim involving a minor child and if the claim is successful, the estate will bear the legal fees incurred by the litigation friend.

What happens when the case settles?

No settlement involving a child is valid without the Court’s approval.  If an agreement has been reached between the parties a hearing may take place or the judge may simply ‘rubber stamp’ the agreement without the need for a hearing.  The litigation friend has the responsibility of making an application to the Court to approve the settlement.  In preparation for the hearing, a barrister’s advice commenting on whether the settlement is reasonable must usually be obtained.

At the hearing a judge will decide whether the settlement is in the child’s best interests and if a lump sum is awarded, that a trust will be set up to invest it safely until the child is at least 18.

Please contact a member of our Contentious Probate Team on our freephone number 0800 8 60 62 65 if you need any further advice.