As set out in a previous blog, 1975 Act claims are claims for reasonable provision from a deceased person's estate. It is not uncommon that those bringing such a claim would be a child – or more accurately an adult litigation friend representing the interests of a minor child of the deceased. We specify a difference here between "minor children" and "adult children" (see next blog) because the position of the two can be very different.

Provision from estates for minor children

There are two standards of provision from an estate which can be sought. The first standard is what we commonly refer to as the "spousal standard". The standards for spouse (including civil partners) is a provision from the estate which is reasonable in all the circumstances whether or not it is required for their maintenance. Effectively, a spouse can expect to be kept in the lifestyle to which they became accustomed during the deceased's lifetime.

The standard for everyone else, including children of the deceased, is provision as reasonably required for their maintenance.

Claims by minor children are almost always against the estate of a parent who has failed to make provision for them.

Why wouldn't a minor child be included in their parents will?

It would be a desperately sad situation that a parent might deliberately fail to make provision for their children from their estate to ensure that they are cared for following the parents death. Whilst that may happen, I suspect it is one of the least common reasons there might be a claim involving a minor child.

One of the most obvious reasons is that a person has prepared a will before they had any children, leaving their estate to other family members, and failed to update it once their children were born. In those circumstances, the children would not receive anything under the deceased’s will.

Establishing dependency

You may think it is quite obvious that a child would be maintained by or dependent upon their parent. However, this isn't always the case. A child would need to show that they were be maintained by the parent and, in the case of some children, that might not be possible.

Dependency is normally established either by a parent providing for their child who lives with them, or perhaps as a result of providing child maintenance under the terms of a court order. However, it is not difficult to imagine the case of an absent parent, who has not contributed any maintenance to their child having failed to leave provision for them in their will.

In those circumstances, the minor child may fail to establish dependency or needs for their maintenance.

Court approval

When dealing with any claims involving minor children, the court is required to approve the variation of any estate under the Variation of Trusts Act. The court will need evidence that the variation is to the benefit of the minor child before any settlement can be approved.

Sometimes this leaves parties in a difficult position. For example, where there are a number of minor children who have not benefited from the estate but some have higher dependency requirements than others. For example, if there were three siblings but one was a disabled child with very high and costly care needs, it might be reasonable for that child to receive a greater proportion from the estate. However, the court would need evidence that the settlement was overall for the benefit of all of the children.

Conclusion

Claims involving minor children can be complex. There are the added complexities of needing a litigation friend and requiring the Court's approval of any settlement. It is advisable when dealing with claims on behalf of minor children to seek independent advice from a specialist contentious probate solicitor.

Should you have any questions regarding claims on behalf of children, or 1975 Act claims, please contact Kezia Brown by email or on 01494 893504.