Can an illegitimate child contest a will in the UK?

The recent court decision in Ubbi & Anori (Minors) v Ubbi [2018] highlights the financial and emotional mess that can arise when someone dies leaving behind two families and an outdated Will. It also deals with a frequently asked question, 'Can an illegitimate child contest a will in the UK?' 

Background to the case

The case involved a claim under the Inheritance (Provision for Family and Dependants) Act 1975 brought by two minor children, Mattia and Gabriele, against their father’s estate. They pursued their claim through their mother, Bianca. The claim was defended by their father’s wife, Susan, as executrix and beneficiary of the estate.

The deceased, Malkiat, had entered into a relationship with Susan in 1987. They purchased a home together the following year where they lived with Susan’s daughter from a previous relationship. In 1994 they had a son, Jarnail, who suffers from both physical and learning difficulties. Susan and Malkiat married in 2000. Over the course of their relationship they built up a pharmaceutical business and owned several properties together.

In 2007 Bianca moved to the UK from Italy and began working with Malkiat at the pharmacy. They began an affair in the summer of that year which lasted until Bianca returned to Italy in September 2008. In January 2009 she returned to the UK at Malkiat’s request and they resumed their relationship. Bianca’s position throughout the claim was that Malkiat had led her to believe that Susan knew about their ongoing relationship. The Court felt it likely that Susan had found out about the relationship some time in 2009 or 2010.

On 6 August 2010 Malkiat executed a Will leaving everything to Susan. Around the same time he and Susan purchased a property at Poplar Court as joint tenants.

In 2011 Bianca fell pregnant and the first claimant, Mattia, was born in March 2012. Malkiat remained living with Susan at their family home but spent several nights a week with Bianca and Mattia. Susan’s evidence was that Malkiat had told her that the pregnancy was an accident and that he was simply helping with the baby. In contrast, Bianca’s position was that the pregnancy was planned and that they intended to start a family. The Court was satisfied that both women were telling the truth and that they were recounting what they had been told by Malkiat.

In 2013 Malkiat moved Bianca and Mattia into the property he owned with Susan at Poplar Court, without consulting Susan. In December of that year he moved out of his family home and in with Bianca and Mattia. Bianca was pregnant again by this time and the second claimant, Gabriele, was born in July 2014. Around the time of Gabriele’s birth Susan sought advice about obtaining a divorce. She obtained a Decree Nisi at the beginning of 2015, but the divorce was never finalised.

Mattia died unexpectedly in February 2015. He left behind a wife, partner, one adult child and two infant children. His Will had not been updated since 2010 and made no provision for Bianca or their children.

Inheritance claim made on behalf of illegitimate children

Bianca pursued a claim under the Inheritance Act on behalf of her children.

Under the Inheritance Act a child can make a claim against the estate of their father even if he was not married to their mother. This is the primary way that illigitimate children can contest a will in the UK.

Both sides criticised the other for the way in which the claim had developed and, whilst Susan accepted that reasonable provision should be made for Mattia and Gabriele, the parties had very different views of what amount would be reasonable. The Court formed the view that, understandably, both Susan and Bianca were primarily concerned with their respective children. Susan sought to minimise the award made to protect the amount which would pass through her to Jarnail. In contrast Bianca’s aim was to obtain sufficient provision to maintain her children at a suitable level throughout their minority. The primary issues concerned what amount, if anything, should be awarded for the childrens’ housing needs, childcare and future school fees.

The Court accepted that the claimants had a housing and childcare need but found that Malkiat did not intend to privately educate them. They were therefore awarded a sum of £386,290.60. The figure included a lump sum for rental payments until Gabriele was approximately 20 years old rather than providing a lump sum to purchase a suitable property. It was noted that the purpose of the claim was not to provide minor children with a sum to receive upon reaching their majority but rather to maintain them throughout their childhoods. It was accepted that Bianca would also have continued to financially support the claimants regardless of Malkiat’s death and it was agreed between the parties that she would have contributed 65% of her income to their maintenance. The award made by the Court was therefore reached by assessing the value of the maintenance need and then deducting Bianca’s contribution from that sum.

How we can help illegitimate children contest a will in the UK

Litigation like this can be painful for the parties and tarnish their memories of the deceased. A delicate approach should be taken to balancing the competing needs of the families left behind. Had Malkiat updated his Will to reflect his change in family circumstances the whole process could have been avoided. Unfortunately, hindsight is a wonderful thing and more and more claims of this nature are being brought.

If you are the illegitimate child of a parent who has died without making reasonable financial provision for you in their will (or you represent a child in that position) then contact our free legal helpline for initial guidance and details of No Win, No Fee funding. Call 0808 139 1596 or email us at info@contesting-wills.co.uk