Under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act), a person falling within the criteria set out in Section 1 of the 1975 Act is able to make a claim against a dead person’s estate for reasonable financial provision to be made for them where no or no reasonable financial provision has been made for them in the deceased person’s Will or, where there is no Will, the intestacy rules do not make such a provision for the applicant.
The Section 1 criteria include:
“(c) a child of the deceased;
(d) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family…”
However, what happens when the child has been conceived by way of sperm donation? The 1975 Act has not yet been applied in such a circumstance as far as the writer is aware but a Judge when deciding an application made pursuant to the 1975 Act has the broadest possible discretion. Accordingly, as with all applications made pursuant to the 1975 Act, each case will turn on its own facts.
There are many different scenarios where sperm is donated for a couple to conceive. At one extreme, a man can anonymously donate his sperm to a registered clinic. Assuming that the individual remains anonymous (i.e. assuming that the child has not hunted the donor out and forged a relationship with him), the legislation leaves little room for a Judge considering a 1975 Act claim to make an award to the child conceived by way of the donated sperm due to the operation of the Human Fertilisation and Embryology Act 2008 (2008 Act). This is because section 41 of the 2008 Act confirms:
“(1) Where the sperm of a man who had given such consent as is required by paragraph 5 of Schedule 3 to the 1990 Act (consent to use of gametes for purposes of treatment services or non-medical fertility services) was used for a purpose for which such consent was required, he is not to be treated as the father of the child.”
There are however scenarios where the father is a known donor. By way of example, a lesbian couple wishing to have a child may seek the assistance of a male friend with a view to conceiving the child.
Given that the donor will be a known party to the conceiving couple (and presumably will be a close friend), there is every likelihood that the child will have regular contact with the donor throughout the remainder of the donor’s life.
Dependent on the circumstances of the specific case, in such a scenario, if the donor assumes some form of responsibility for the child financially, it is possible that the child could make a claim against the estate. Albeit the claim may be pleaded on the basis of the child has been dependent during the deceased’s lifetime but dependent on the circumstances of the case could arguably step over the line to enable the child to be able to argue that he/she was treated as a child of the deceased.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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