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Different categories of people can bring claims against an estate under the Inheritance (Provision for Family and Dependants) Act 1975.
The Act enables an applicant to challenge a Will (or intestacy if there is no Will) on the basis that it has failed to make reasonable financial provision.
The categories of eligible applicants include children of the deceased – both minor and adult children.
There are unique issues to consider when claims are brought by minors which are easy to overlook.
Who conducts the litigation?
A minor child cannot conduct litigation, so they require an adult who can and is willing to act on their behalf.
This person is called a “litigation friend” and will usually be a parent, relative or family friend.
The litigation friend must act in the child’s best interests while making decisions.
When acting for a minor child, a suitable litigation friend must be identified as soon as possible.
What must be proved?
Under the Act, there are several factors which the court considers before deciding whether a reasonable financial provision has been made.
These are called the “section 3 factors” and include:
- The financial resources and needs the claimant has now and in the future.
- The financial resources and needs any other claimant has now and in the future.
- The financial resources and needs any beneficiary has now and in the future.
- Any obligations and responsibilities the Deceased had towards any claimant or the beneficiary.
- The size and nature of the net estate.
- Any disabilities of any claimant or beneficiary.
- Any other matter, including the conduct of the claimant or any other person, which the court may consider relevant in the circumstances of the case.
In addition, minor children applicants must also consider to:
- Whether the Deceased maintained the child and, if so, the length of time and basis upon which this was done and the extent of the contribution made by maintenance.
- Whether and, if so, to what extent the Deceased assumed responsibility for the maintenance of the child.
- Whether in maintaining or assuming responsibility for maintaining the child, the Deceased did so knowing that the child was not their child.
- The liability of any other person to maintain the child.
The litigation friend must be able to provide information to the court in support of the above requirements.
If the court finds that a reasonable financial provision has not been made, the same factors will be applied again when considering what provision should be made.
In the case of a minor child, the provision made will likely be through a trust until the child is older.
Can a child claim be settled before trial?
Most claims do not reach trial as the parties can reach a settlement beforehand.
In this case, the settlement will need to be approved by the court before it comes into effect.
This is called an “infant approval hearing”.
A barrister acting for the child must provide written advice explaining why the proposed settlement is in the child’s best interests.
Usually, the child’s parents will also be asked to give their opinion on the proposed settlement.
The court will often list a hearing to enable the Judge to ask any questions they may have before approving the proposed settlement.
Once the court has approved the settlement, it can be carried out, and the claim will be concluded.
These costs must be taken into account in any settlement discussions.
Funding
There are different ways to fund claims brought by minor children – these include privately paying or a funding arrangement such as a Conditional Fee Agreement, more commonly known as a “no win, no fee” agreement.
Every case is different, so our team of specialists will conduct an initial assessment at the outset of your matter and advise the best funding arrangement for you.