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Your Will and arranging child maintenance

You may have seen reports in the press recently of a mistress being locked in a bitter dispute with a tycoon’s widow after their adored love child was left out of the deceased’s multi million pound Will.

The child’s mother, Miss Proles, is claiming that the father doted on the child and would never have wanted her to go without a penny of his fortune. She claimed that he had funded the child’s nursery school place, given her gifts and planned to pay for her to have tennis coaching.

The child’s mother is bringing her claim under the Inheritance (Provision for Family & Dependents) Act 1975.

This law enables relatives or dependents to make a claim against an individual’s estate where they have died without making property provision for them in their Will.

A fundamental part of this is that the person that died must have been domiciled within England and Wales at the time of their death.

This is a problem that Miss Proles is facing in her Court proceedings because the widow of Mr Coley is alleging that although he had property and businesses in the UK he did not intend to settle here permanently and that his domicile was in India.

If Miss Proles can get over this hurdle then the Court has the power to consider what reasonable financial provision should be made for her child.

This means that the Court has to consider what provision would be reasonable in all the circumstance so the Court can take into account the manner in which the child was being or would expect to be educated or trained.

The Judge has a very wide discretion to redistribute a deceased person’s estate to produce a fair result. This can include regular payments, a lump sum, or even the transfer of property.

We have heard about the provision that can be made for children when one of their parents dies and does not leave provision for them in a Will.

However, what sorts of claims can be made on behalf of children when their parents’ relationship breaks down where both parents are still living.

For married couples then the majority of claims can be dealt with in the course of their divorce proceedings.

For every day child maintenance then most parents will be able to reach a voluntary agreement between themselves or alternatively use the child maintenance service. https://www.gov.uk/child-maintenance

However, for unmarried couples where the wider financial needs of their children need to be looked at then the only option may be to issue an application under Schedule 1 of the Children Act 1989.

In these cases the Court has the power to award the transfer of property, lump sums to meet capital expenditure and additional maintenance payments for example for all the costs for child’s disability, school fees or because the person paying the child maintenance has such a high level of income that they would need to provide top up maintenance.

Schedule 1 claims can be complex given the factors to be taken into account and the range of Orders that can be made by the Court.

There is also a significant difference in the way that the costs of Schedule 1 applications are dealt with in contrast to financial claims in divorce proceedings. Under Schedule 1 claims if a parent is unsuccessful in their claim then the Court has the power to order them to pay not only their own legal costs but the other parent’s costs as well.

So before launching any type of Court application you should consider getting advice from a specialist family lawyer.

If you would like any advice on family law matters, contact any of our offices on the numbers on this website.

 

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