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Infant children win court challenge for maintenance after father dies without updating his Will

The crucial importance of regularly updating your Will has been dramatically highlighted by the case of a man who died unexpectedly before his divorce was finalised.

As a result, two of his children born during a long relationship with the woman he’d left his wife for, were not provided for meaning a claim had to be brought under the Inheritance Act by their mother on their behalf.

The High Court awarded the children, aged just three-years-old and six months, a lump sum of £386,000 in what is considered a landmark decision as there have been so few similar cases involving reasonable provision for infants in the past.

Background

Mr Malkiat Ubbi, a pharmacist, married Susan, who he’d met in 1987, in 2000. They had a child, a disabled son, born in 1994. Susan already had a daughter from a previous relationship.

In 2007, Malkiat began an affair with Bianca Maria Corrado who came to work in his London pharmacy. They had two children together after he made his last Will, Mattia in 2012 and Gabriele in 2014.

In December 2013, Malkiat moved out of the marital home he shared with Susan and went to live with Bianca and their two children. In 2014, Susan started divorce proceedings and the Decree Nisi was pronounced in January 2015.

But less than a year later, and before the divorce was finalised, Malkiat died unexpectedly from septicaemia effectively leaving, by his last Will and testament dated 6 August 2010, his entire £3.5 million estate to Susan.

He made no provision for any of his children, including his two with Bianca, except in the case that if Susan failed to survive him for a period of 28 days, his estate would be left on trust to their son.

Details of the case

Bianca, acting as what is known as a litigation friend for Mattia and Gabriele, issued a claim for reasonable financial provision for her children from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

The judge, Master Karen Shuman, commented: “Testamentary freedom is of course important. However given the factual context I do not infer that Malkiat consciously chose to exclude Bianca or any future children from the estate.”

The court awarded Bianca a lump sum of £386,000 after considering a number of factors including the high standard of living both she and Susan had enjoyed as well as housing costs, professional child care fees, other outgoings and school fees for Mattia and Gabriele.

Perhaps interestingly, the judge did not agree that school fees should be taken into the equation stating: “I do not accept that the provision of private education is reasonable financial provision for the children.”

Lessons to be learned

The case highlights the importance of keeping your Will up to date as your personal circumstances and financial position change, particularly if you divorce or re-marry.

Not doing so can leave potential heirs and second families unaccounted for and lead to huge stress and expense when they are left with no option but to dispute the Will and/or bring a claim against the estate.

It is also vital to consider the implications of remaining married to someone when the relationship has broken down, particularly if you go on to have more children with another partner.

If Malkiat had updated his Will to make provision for his children, it’s less likely that a claim would have been made against the estate, sparing all concerned the undoubted upset and costs associated with going to court.

Considering a claim against an estate? Don’t delay

If you do want to consider a claim against an estate, it’s important to take independent legal advice as soon as possible as any claim under the Inheritance (Provision for Family and Dependants) Act 1975 must be issued within six months of the date of the grant of probate.

For help and advice about contesting a Will, please contact Wards Solicitors’ Probate Disputes team and to discuss making or revising your Will, please contact Wards Solicitors’ Wills, Probate and Mental Capacity team.

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