Nothing ever stays the same. Your personal circumstances can change from year to year and, when these changes are significant – e.g. marriage, divorce, the purchase of a property – updating your details in legal records is very important. Wills are no exception, as highlighted by the recent case of Ubbi v Ubbi .
The Inheritance Act (Provision for Family and Dependants) 1975 provides that any eligible applicant can challenge a Will if it does not make adequate provision for them. In this case, Mr Ubbi’s Will was challenged by Bianca Corrado, the mother of his infant children, on their behalf under Section 2 of the Act.
Malkiat Ubbi, a pharmacist, married his wife Susan in September 2000. The couple already had a son, Jarnail, born in June 1994. However, in 2007, Malkiat met Bianca with whom he began an affair and the couple had two children in 2012 and 2014.
In 2013, Malkiat left the matrimonial home and went to live with Bianca and their children. In September 2014, Susan issued divorce proceedings and the Decree Nisi was pronounced in the following January, although Susan claimed that she and Malkiat had reached a reconciliation.
Malkiat died suddenly only a month later. His most recent Will, dated August 2010, left everything to Susan. In the event that Susan should not survive him for a period of 28 days, his estate would be held in Trust to their son, Jarnail. No provision was made for Bianca or her two children.
In April 2016, Bianca issued a claim under the Act, seeking an order for reasonable financial provision for her two children. As Malkiat’s children, they were entitled to make the claim. It was now for the court to decide whether his estate already made reasonable financial provision for them and, if not, whether an order should be made in their favour.
In light of this, the court considered:
- The financial resources and needs which the applicant and/or beneficiary of the deceased’s estate have or are likely to have in the foreseeable future
- Any obligations and responsibilities which the deceased had towards any applicant or beneficiary of the estate for an order under Section 2
- The size and nature of the deceased’s net estate
- Any physical or mental disability of any applicant or beneficiary of the estate
- Any other matter, including the conduct of the applicant or any other person which, in the circumstances of the case, the court may consider relevant
- As a claim brought by infant children, have regard to the manner in which the applicant was being, or in which he might expect to be, educated or trained.
The court also accepted the importance of testamentary freedom and discretion towards ‘reasonable’ financial provision for ‘maintenance’.
Malkiat was still living with Susan whilst conducting an affair with Bianca when he executed his Will in 2010. The court found that the children had not been a consideration and concluded that the significance of the provisions of the Will had limited bearing on the case. The court did not consider that Malkiat had deliberately chosen to disregard the children’s needs.
The court considered the children’s reasonable financial requirements of maintenance to cover housing costs, school fees, professional childcare fees and other outgoings.
Regarding housing costs, the court found that a four-bedroom property was required to accommodate Bianca, both children and a live-in professional nanny to help provide until they attended secondary school, at which point a three-bedroom property would be sufficient. The court calculated a lump sum to cover childcare (which reduces following the children’s attendance at secondary school) and a separate lump sum to cover rental costs for this situation until the youngest child was 19 years old. No award was made for the financial provision for school fees as there was no expectation that the children would be privately educated. The court awarded an additional capitalised lump sum payment for maintenance to cover other outgoings such as utilities, council tax and university fees.
Had Malkiat updated his Will in light of the change to his personal circumstances, thereby making provision for his children with Bianca, the stress of the legal challenge could have been avoided. This underlines the importance of reflecting such changes in a Will as the need arises.