Is a solicitor under a duty to warn their client of risks falling outside their retainer?
The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) enables a child of the deceased to make a claim against his or her estate provided that they can show that they were financially dependent on the deceased and that the deceased did not make adequate provision for them in their will (or by an intestacy).
The scope of what constitutes a child extends to any child of the deceased including illegitimate, legitimated and adopted children of any age and any person treated by the deceased as a child of the marriage or civil partnership.
In recent years the courts have seen a spate of claims under the 1975 Act bought by adult children however a recent decision in the case of Ubbi & Ubbi (minors represented by their litigation friend and mother) v Ubbi  EWHC 1396 (Ch) has put the spotlight on claims by minor (and illegitimate) children.
The Claimants, Mattia and Gabriele Ubbi, were the infant children of Malkiat Ubbi who had been in a long term extra marital relationship with their mother, Bianca Corrado. No provision had been made for Mattia and Gabriele in Malkiat's will dated 6 August 2010, which pre-dated their birth. Malkiat bequeathed the entirety of his estate to his wife Susan, who prior to his death had petitioned for a divorce on the grounds of his adultery. Mattia and Gabriele sought a lump sum of £848,105.78 from their father’s estate.
In reaching her decision, Master Schuman considered each of the factors under Section 3 of the 1975 Act and in particular focused her attention on the additional matters to take into account in claims brought by minor children as set out in Section 3(3).
Under Section 3 of the 1975 Act, the court will take into account the following factors when deciding whether a reasonable financial provision has been granted for a claimant:
a) the financial resources and needs of the applicant;
b) the financial resources and needs of any other applicant;
c) the financial resources and needs of the beneficiaries;
d) any obligations and responsibilities of the deceased towards any applicant and any beneficiary;
e) the size and nature of the estate of the deceased;
f) any physical or mental disability of any applicant or beneficiary;
g) any other matter, including conduct, which the court may consider relevant.
Under Section 3(3) of the1975 Act "…. the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) …… have regard to the manner in which the applicant was being or in which he might expect to be educated or trained…".
Master Schuman split Mattia and Gabriele maintenance requirements into three main categories: (i) housing costs; (ii) school fees and (iii) childcare as well as giving some consideration to other additional outgoings.
The court considered that a 4 bedroom terraced house in Twickenham would meet the children's maintenance needs. Master Schuman accepted evidence that their father would have liked for Mattia and Gabriele to have a home with a garden. The family needed four bedrooms in order to accommodate a room for each of Mattia and Gabriele and also a full time live in nanny until the children were old enough to attend secondary school in order that Bianca could continue to work. The lump sum in this category was calculated until Gabriele, the younger of the two children, was nearly 20 years old.
Master Schuman said that whilst it was clear that Bianca considered that private education would provide Mattia and Gabriele with the best possible start in life, this was not the applicable test under the 1975 Act; there needed to be an expectation that the children would be privately educated and there was no evidence of a firm intention to do so on the part of the deceased. Consequently, no allowance was made for private school fees in the final lump sum award.
As indicated above, the court accepted that were Bianca to be able to continue to work full time then extensive private childcare was required albeit there could be a slight reduction in provision for childcare when the children attended secondary school.
Master Schuman awarded an additional lump sum to take into account utilities, council tax, additional school costs and university fees.
A discount was then applied to the final figure reached to reflect a 65% contribution by Bianca to Mattia and Gabrielle’s financial maintenance. The final lump sum figure awarded was £386,290.60.
The judgment provides useful guidance on the application of the 1975 Act in relation to claims bought by minor children and a reminder as to the importance of updating your will. The deceased’s estate was valued somewhere in the region of £3.5 million and Susan still benefited from the large majority irrespective of the fact marital relations were said to have irretrievably broken down before the deceased died.
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