Don’t delay - update your Will!

Don’t delay - update your Will!

The recent decision in the case of Ubbi v Ubbi highlights the importance of updating your Will especially in today's society where we are seeing increased changes in the family structure. Blended families are now more common with many couples having children from previous relationships. These ever evolving structures are exciting and bring a new dynamic to family life but it is important to plan for the future.

The Facts

The case of Ubbi concerned a truly blended family. Mr Malkiat Ubbi (the deceased) was married to Mrs Susan Ubbi. In 1994, they had a child together, Jarnail. Jarnail was born with partial paralysis and learning difficulties.

Shortly after this, in 2007, Malkiat met another women, Bianca, at work and started an affair with her. He was, for many years, living a "double life".

In 2010, Mr Ubbi executed a Will leaving everything to Susan.

Bianca and Malkiat continued their relationship and had their first child, Mattia in 2012. Susan became aware of the pregnancy but Malkiat said that Mattia was an "accident". Malkiat continued with his double life spending his time between the two homes and families. In 2014, Bianca had their second child Gabriele.

Shortly after Gabriele was born, Susan concluded that the relationship had broken down and decided to petition for divorce based on Malkiat's adultery.

Malkiat unexpectedly passed away in February 2015 from septicaemia aged just 53 years old. The value of his estate was approximately £3.5 million.

What happened?

Under the terms of the Will, Malkiat's entire estate passed to Susan (who he was in the process of divorcing) with no provision for Bianca or their two children. This may not have been what Malkiat would have wanted or ever envisaged. He, like so many of us, may simply have never got around to updating his Will.

Bianca decided to bring a claim on behalf of Mattia and Gabriele under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.

The case was unusual as few Inheritance Act cases involving minor children have reached the Courts meaning that there was little specific guidance in this area. The most recent and widely reported decision in relation to Inheritance Act claims was Illott v Mitson which reached the Supreme Court last year but this involved a claim by an adult child.

Susan accepted that Mattia and Gabriele should receive something from the estate, the question was, how much?

The amount claimed was just over £848,000.00 which was calculated based on the estimated future cost of childcare, housing and schooling.

The Court had to consider a number of factors.

The purpose of the Inheritance Act is to provide maintenance and whilst maintenance may be capitalised, the object is not to provide the child with a capital sum upon attaining majority. The Court had to carefully consider what sum would be sufficient to provide Mattia and Gabriele with maintenance (every-day living expenses).

The Court also had to consider other effected parties such as Jarnail and the effect that an award would have on him. If an award was made, Susan would receive less and as she is his mother and carer this would impact him in the future.

In terms of the claim for schooling, Bianca said that it was always hers and Malkiat's intention to privately educate their children to give them the best possible future. The Court concluded that even if there was a clear wish for them to attend private school, there could not be an expectation and for that reason did not fall into the boundaries of "reasonable financial provision". The Court therefore refused to make an award in respect of schooling costs.

The Court also placed emphasis on Bianca's strong financial position and the contributions that she would naturally make to her children's upbringing. She had acquired a number of properties and also had a healthy income.

In the circumstances, the Court decided to award the children a sum of £386,000.00 being just over 10% of the net estate. The award was made on the basis that Bianca's income would continue at its current level and that it was limited to the children's maintenance until their late teens. In reality, it is becoming more and more common for parents to continue to provide financial support for their children long after their teenage years. Many parents will provide help with university fees, house deposits, weddings etc.

Why is this important?

Whilst not all of us may live an eccentric life like Malkiat, this decision highlights the importance of regularly reviewing your Will and keeping it up to date. It is advisable to check the terms of your Will yearly and especially after any life changing event such as divorce, remarriage or death. Remember getting married or entering into a civil partnership usually revokes any previous Will or Codicils you have made, even if this is not your intention. This means that if you do not make a new Will then when you die your estate will be distributed in accordance with the Intestacy Rules which can be arbitrary. Reviewing/updating or making a new Will can seem burdensome and costly but it can avoid problems in the future which can have a devastating effect on the family.

Although Mattia and Gabriele were able to rely upon the law to a certain extent to rectify the situation, their claim was significantly limited and they ended up receiving far less than their father's other family.

At Clapham & Collinge we have a dedicated team of experts who are able to provide you with all of the necessary information, support and legal advice on will disputes and how they can be resolved.

For more information on our Will services, please visit our dedicated 'Making a Will' webpage.

For more information on the legal services we offer or to book your appointment please contact our Client Relations Team today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, and Sheringham offices.

*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.