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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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How important is it to keep a will up to date?
20 August 2018

The recent case of Ubbi V Ubbi [2018] highlights just how important it is to keep a will up to date – particularly if your personal or financial circumstances change.

In this case, the will was challenged and a claim was brought on behalf of Mr Ubbi’s infant children by their litigation friend and mother, Bianca Corrado (“Bianca”) under Section 2 of the Inheritance Act (Provision for Family and Dependants) Act 1975 (“the Act”).

Family background

Malkiat Ubbi (“Malkiat”) was a pharmacist by trade. In 1987 he met Susan and they married in September 2000. The couple had one child, Jarnail born in June 1994. Susan already had a daughter, Jesse, from a previous relationship.

In 2007 Malkiat met Bianca, an Italian pharmacist who had moved to the United Kingdom and began to work in the Ubbis’ pharmacy. The couple had an affair. After a brief separation in late 1988 when Bianca returned to Italy the couple resurrected their affair and went on to have two children, Mattia born in March 2012 and Gabriele in July 2014.

In December 2013 Malkiat moved out of the matrimonial home where he was living with Susan and went to live with Bianca and their two children. In September 2014 Susan issued divorce proceedings against Malkiat. Decree Nisi was pronounced in January 2015, although it was Susan’s case that she and Malkiat had since reconciled.

On 8 February 2015 Malkiat died unexpectedly from septicaemia. By his last will and testament (dated 6 August 2010) he left all his real and personal property to Susan. He made no provision for any of the children, including his two children with Bianca, save in the event that Susan should not survive him for a period of 28 days he left his estate on trust to Jarnail.

The Court proceedings

On 19 April 2016, Bianca challenged the will and issued a claim under the Act, seeking an order for reasonable financial provision for her two children. In order to bring a successful claim under the Act the children had to prove (a) that they fell within the category of applicants under Section 1 of the Act, (b) that the disposition under Malkiat’s estate did not make reasonable financial provision for them and (c) having regard to the matters set out in section 3(1) and 3(2) of the Act that an order should be made in their favour.

As children of the deceased, the children fell into the category of persons entitled to bring a claim under the Act. As such, they were entitled to seek such financial provision as it would be reasonable in all the circumstances of the case for them to receive for his maintenance. The question for the court then to decide was whether it should exercise its powers and make an order and if so, the level at which such an order should be made.

When considering the children’s challenge of the will the court was required to have regard to various matters including:

  • 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 any 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; and
  • As a claim brought by infant children, have regard to the manner in which the applicant was being or in which he might be expected to be educated or trained.

In addition the court shall take into account the facts as known at the date of the hearing and, in considering the financial resources of any person, his earning capacity and financial obligations and responsibilities.

Lastly, the court also accepted that it must have regard to two other factors, namely the importance of testamentary freedom and discretion to award “reasonable” financial provision for “maintenance”.

Testamentary freedom

In August 2010, when Malkiat executed his will, he remained living with Susan whilst continuing to conduct an affair with Bianca. Mattia was not born until 2012 and Gabriele in 2014. The court found that at the time of execution of the will Mattia and Gabriele 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.

Reasonable financial provision for maintenance

When considering reasonable financial provision and maintenance for the children the court took into account the standard of living enjoyed by both Susan and her family and Bianca and the children whilst Malkiat was alive which was of a high standard, the size of the estate (said to be some £4,500,000 gross) and resources available to Susan.

The court then considered the children’s reasonable financial requirements for maintenance. In this regard, the court found that these fell into four categories – housing costs, school fees, professional childcare fees and other outgoings.

So far as housing costs were concerned, the court found the children required a four bedroomed property so that each of them could have their own bedrooms and Bianca could employ a live-in professional nanny to assist with childcare until such time as the children were both at secondary school when a three bedroomed property would then suffice. Based on documentary evidence provided as regards monthly rental costs for each of these two scenarios, the court calculated a lump sum up until Gabriele was nearly 20 years of age.

On the question of school fees, the court found there was no expectation that the children would be privately educated and refused to make any award for the financial provision of the same. The court considered that any expectation in this regard was a sole desire on the part of Bianca with there being no evidence that this was a wish held by Malkiat as well.

As to the child care arrangements, the court agreed that Bianca, by necessity following Malkiat’s death, now worked very long hours and it was reasonable for her, therefore, to employ outside private assistance with childcare. Again, the court calculated a lump sum figure for this based on evidence provided by Bianca as regards the cost thereof. This sum reduces following the children’s attendance at secondary school.

Lastly, the court awarded an additional sum by way of capitalised lump sum payment for maintenance to cover other outgoings such as utilities, council tax and university fees.

When calculating the total lump sum, the court then applied a reduction to the same, being a sum representing a 65% contribution based on Bianca’s own income towards the costs of the children’s maintenance. As a result, the court ordered that the children be awarded a lump sum payment of £386,290.60.

Conclusion

The provisions of the Act are such that it is specifically designed to ensure that any applicant can challenge a will if the deceased’s will does not make adequate provision for them,  assuming that they fall into one of the classes of categories of applicants entitled to bring such a claim. 

In this case, had Malkiat updated his will to make provision for his children with Bianca (and indeed Jarnail) it is less likely that the will would have been challenged;  saving all parties from having to endure the considerable emotional distress of the proceedings not to mention substantial sums which were spent on legal fees.

The case importantly highlights the need to ensure that a will is treated as a living document and updated whenever there is a significant change in circumstances, whether that be financial or personal.

If you wish to discuss challenging a will please get in touch with Ally Tow at [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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