The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) allows certain people to bring a claim for “reasonable financial provision” from the estate of a deceased person, if it has not already been provided either in a will or by default through intestacy. In this article, we explore how you can make such a claim on behalf of a minor – including some examples of how and why a child may not be given financial provision in a relative’s will, and some factors that could affect an Inheritance Act claim made on behalf of a minor.
Defining minor children in these claims
Minor children can fall into one of the categories if they are:
- A child of the deceased;
- A child of the deceased’s spouse/civil partner, or treated as a child by the deceased; and
- A child who immediately before the death of the deceased was being financially maintained by the deceased. This does not have to be the parent of the deceased, it could be grandparents or another relative who were, for example, paying school fees.
Financial provision is limited to what is required for a child’s maintenance. This can include accommodation, food, living costs, private school fees, cars etc.
It is important to act quickly, as a lack of reasonable financial provision for a minor child can be extremely disruptive to their lives if it means their housing, food and/or schooling is affected by the death of a loved one, particularly a parent. Minor children often will not have savings to fall back on and they will have no income of their own, and it will often fall to the surviving parent or other family members to provide for them financially.
How can minor children be overlooked for financial provisions?
Here are some common scenarios that might mean the minor child does not receive reasonable financial provision from a deceased person’s estate:
- A deceased parent leaves nothing or very little to their minor child from a different/previous relationship under their will. They may have been estranged or the will may leave the estate to a current spouse, believing they will look after the minor child. However, this is not always the case for example, in the case of a step-parent who does not get on with the deceased’s child from a previous relationship;
- A deceased parent left a will making provisions for their minor children but remarried without making a new will. Marriage automatically revokes a will so all, or the majority of the estate passes to the new spouse under the intestacy rules which may or may not be the child’s parent;
- A deceased parent never had a will and, depending on the size of the estate, all or the majority of their estate passes to their spouse under the rules of intestacy. They may or may not be the child’s parent. The child’s share, if any, may not be enough to provide for them;
- The deceased may have treated their step-child as their own, but on their death, the estate passes to their biological children with no or little provision for the minor child due to the wording in the will or under the rules of intestacy;
- A well-meaning deceased wanted to protect the estate for their children and so left it in a discretionary trust where the minor child is only one of a number of potential beneficiaries, so has no outright entitlement to the estate or any of the income it generates;
- The deceased, who is not the child’s parent, may have been contributing financially to the child’s upkeep but on death, these payments stop. E.g., a grandparent pays for a minor child’s private school fees, but their will splits the estate between their children (the minor child’s uncles and aunts) with no financial provision for the minor grandchild.
What is considered a “reasonable” financial provision?
There are a lot of factors the court will consider when working out what would be “reasonable”. In the context of a minor child’s 1975 act claim, the main ones are:
- What financial resources does the minor child have? This is often nothing or very little as most minor children won’t have an income or savings. However, the financial position of the surviving parent will be taken into account, as will how much they can provide for their child;
- The financial needs the minor child has or is likely to have in the foreseeable future. This can be very wide, as minor child very often relies on their parent to house them, provide them with food, clothes, transport, spending money, extra-curricular activities etc. Depending on the age of the child and what they would like to do when they are older, it may be appropriate to consider financial needs for things like driving lessons;
- Any obligations and responsibilities which the deceased had towards the minor child. Did the deceased make any promises? Each claim is case-specific and in one case a judge may be persuaded to award financial provision to include university course fees for a minor child if the deceased had already paid for their other older siblings to go to university and there are sufficient funds in the estate. In contrast, where there is a modest estate and the minor child has no interest in going to university, and their other siblings took out loans for higher education, the judge is much less likely to factor in university fees into the claim; and
- Any physical or mental disability of the minor child. Care fees can be expensive and not always available publicly. A minor child may also have mental health needs and need (continuing) access to private therapists/psychologists.
Other factors that would affect a minor child’s 1975 act claim
- Any obligations and responsibilities the deceased had to someone else who is making a 1975 Act claim, or is already a beneficiary of the estate. For example, does the deceased had multiple minor children that also needs financial provision? Or a spouse?
- Does the deceased’s other children have physical or mental disabilities?
- The size and nature of the net estate of the deceased must be considered as it could limit a claim under the 1975 Act.
- Anything else the court thinks is relevant, including the conduct of the minor child and/or other people involved in the claim.
Is there a time limit to bring a claim?
Any minor child who wants to bring a claim under the 1975 Act must do so within 6 months of the Grant of Representation (Grant of Probate or Letters of Administration) being issued. This is a short window.
However, in some circumstances, the court may allow a claim to be brought outside of this deadline but this is entirely at the court’s discretion. If you or someone you know has a potential claim, you must seek legal advice as soon as possible.
Litigation friend
The court doesn’t consider a minor child to be competent to bring a claim (no matter how sensible or smart they are!) so a litigation friend will need to be appointed to act on their behalf until either the claim is settled or they reach the age of 18. The litigation friend is usually the surviving parent, legal guardian, or close relative. That person must act in the best interests of the child, and not have an adverse interest in them; e.g. it would not be appropriate for someone to act as a litigation friend for their child if they too are bringing a claim against the estate. In some situations, it may be appropriate to appoint a professional e.g. a solicitor to act as the litigation friend. Find out more about litigation friends.
Court approval
Most claims settle before they reach a final trial. However, if a proposed settlement is reached outside of court for a 1975 Act claim brought on behalf of a minor, it must be sent to the court for approval. It will need to be accompanied by a written opinion from a barrister (instructed by the minor child’s litigation friend) detailing why they think the proposed settlement is in the minor child’s best interest.
The court will therefore consider whether the settlement provides reasonable financial provision for the child.
What are the costs involved in a 1975 Act claim for a minor?
The costs of resolving disputes can add up quickly and careful thought needs to be given as to whether it is best to bring a claim. However, for minor children, it is often clear that they have a financial need and a claim is worth pursuing.
To help our clients manage costs, we offer a range of funding options such as paying as-you-go, “no win, no fee” arrangements, deferred payments, etc. In some circumstances, costs can be paid from the estate.
Personal representatives
If you are a personal representative and you are aware of a minor child that may have a potential 1975 Act claim, you must remember to act neutral to protect your costs protection. The most appropriate thing to do is obtain legal advice and ensure that the minor child is represented by a litigation friend and has independent legal representation.