Expect The Unexpected! The Importance Of Keeping An Up To Date Will

In the case of Ubbi & Anori v Ubbi, the High Court has awarded a lump sum of £386,000 to infant minors who made a claim through their mother, as their litigation friend, for reasonable financial provision out of their father’s estate.

Ubbi & Anori (Minors) v Ubbi [2018] EWHC 1396 (Ch)

Case background:

• Mr Malkiat Ubbi was married to Mrs Susan Ubbi. In 1994, they had a child, Jarnail, who had left-side hemiplegia and learning difficulties.
• Malkiat executed a Will in 2010 effectively leaving everything to Susan.
• Malkiat, however, had been living a double life, which the Judge, Master Shuman, said ‘had led directly to the current litigation’.
• Malkiat met Bianca Corrado in 2007 and began an affair. They had two children together after he had made his last Will, Mattia in 2012 and Gabriele in 2014.
• Malkiat unexpectedly died in February 2015 from septicaemia. The value of his estate was approximately £3.5million.

The claim

Bianca Corrado, acting as litigation friend for Mattia and Gabriele, issued a claim for reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Susan accepted from the time of Malkiat’s death that the Claimants should receive financial provision from his estate but the question was what was reasonable. In her witness statement, Susan said:

‘I have great sympathy for the Claimants…and I accept that reasonable provision should be made for them out of the estate’.

The amount claimed shrunk from £2.3 million to £848,000 as the case reached trial. Master Shuman considered that in making an order for a lump sum, it would need to be sufficient to provide maintenance (everyday expenses of living) for the children but not to provide them with a capital sum.

In considering the section 3 factors within the Act, Master Shuman commented on the significance of the Will:

‘Testamentary freedom is of course important. However given the factual context I do not infer that Malkiat consciously chose to exclude Bianca or any future children from the estate’.

The Court reviewed Bianca’s strong financial position, including a number of properties she owns, her income from that and her employment, together with her housing and childcare needs. In respect of the standard of living, Master Shuman referred to the Illot v The Blue Cross [2017] case, reiterating the point that the level of maintenance is flexible, and should be assessed on the facts of each case.

Although Jarnail was not an applicant in these proceedings, the Court took into account his needs indirectly through Susan, as a beneficiary of the estate, being his mother and carer and by virtue of the fact that Malkiat had an obligation towards Jarnail. His needs were also considered under s3(g) being any matter the Court considers relevant.

A proportion of the amount claimed was for Mattia and Gabriele to go to private school, which Bianca explained was a firm intention of hers and Malkiat’s. This however was not accepted by Master Shuman in her judgment, stating:

‘I do not accept that the provision of private education is reasonable financial provision for the children’.

Master Shuman settled on a sum of £386,000 in the circumstances.

Comment

Whilst the case of Ubbi & Anori v Ubbi highlights the importance of keeping your Will up-to-date as your personal circumstances and financial position change, it also demonstrates that the Will does not necessarily provide for the final position upon one’s death and the law is able to rectify matters to a limited extent where appropriate.

It may come as little comfort to Mattia and Gabriele, however, who have ended up receiving far less than their dad’s “other” secret family.