Writing for Issue 17 of TL4 Private Client Magazine, published in December 2024,  Trust and Probate Litigation associate Judith Swinhoe-Standen considers key points to remember when acting for minors and unborns in a trust or probate dispute.

Minors and unborn children (unborns) are joined to many types of trust and probate disputes. Commonly, they are actual or potential beneficiaries of the estate or trust that is the subject of the dispute, meaning their interests will be affected by the outcome.

In some ways, minors and unborns are easy clients: no Zoom meetings, no meandering email chains, and, if you are representing only unborns, no actual clients. However, the representative for minors and unborns holds an important role, and their input can potentially change the course of a dispute.

Here are five things to remember when acting for minors and unborns in a trust or probate dispute.

1. Your clients’ age

If your clients are very young or yet to be born, they obviously do not have the means to understand or form an opinion about the issues in dispute.

However, it is important to remember this is not always the case. Despite lacking legal capacity, many intelligent teenagers will understand the issues and have opinions about them.

When acting for minors in this position, it is important to do what you can to make them feel included in the decisions being taken on their behalf, notwithstanding the red line separating the legal standing of those over and under 18.

2. Get involved early

Similarly, the importance of the minors’ and unborns’ perspective should not be underestimated, and their representative should provide this as early in the proceedings as feasible.

The worst-case scenario is that late input on behalf of the minors and unborns scuppers an agreement reached in principle between the other parties. Re the V, W, X and Y Trusts [2021] JRC 208 is an example of this. This was an application by the trustee of four Jersey trusts for a blessing of a proposed decision to carve out a sum from those trusts and settle it on a new trust so that it would meet the ‘needs’ element of any claims by a future spouse of a beneficiary on a divorce, thereby insulating the existing trusts from such claims. Although all the existing adult beneficiaries supported the trustee’s proposal, the representative for the minors and unborns, who was convened late in the day, raised several uncertainties about the proposal including that it was not in the minors’ and unborns’ interests. The court shared these concerns and declined to bless the proposal.

The key message from this case is that it is not realistic to expect the representative for the minors and unborns blindly to follow what the other parties have decided, and they should be consulted at an early stage to avoid last-minute issues.

3. The outcome of the dispute will affect the minors and unborns for the longest

As the youngest beneficiaries of an estate or trust, the outcome of the dispute will be longest-lasting for the minors and unborns. From their perspective, it is vital that the outcome works in the long term. In particular, if  assets are to pass from adult living beneficiaries to the next generation at an unspecified future point, representatives for the minors and unborns will want to ensure there will still be something left for them if and when they become entitled to the trust funds.

4. Avoid crystal-ball-gazing

While it is important to contemplate possible future outcomes, the temptation to model more and more scenarios to try to predict exactly how each one will impact the minors’ and unborns’ lives should be resisted.

It is impossible to predict the future, and the best-laid plans can easily go awry. For example, after the proceedings have concluded and the outcome has been put into effect, an unforeseen event might occur that has a catastrophic effect on investment returns. Or, there might be a boom in an industry in which the minors’ and unborns’ funds have not been invested.

The best you can do is to make a sensible judgment on the facts of the case as you know them at that time. Depending on the nature of the case, an application can always be made to adjust the arrangements at a future point. Those footing the bill for your advice are unlikely to thank you for taking an over-exhaustive approach during the proceedings.

5. Keep your fees under control

Linked to this is the importance of keeping your fees under control. Although your clients themselves might not be scrutinising them, the court may well do so at the end of the dispute when it comes to costs recovery. Typically, the minors’ and unborns’ role is more confined compared to the adult parties, so it is an immediate red flag if their representatives have incurred substantial fees or taken too proactive a role.

Conclusion

Ultimately, how you approach a case on behalf of minors and unborns depends on the circumstances of the case. With unborns and very young children in particular, you can act only in their general best interests as they do not have the capability to understand the issues or express any views.

You should make the best decisions you can with the information you have at the time. That way, if your advice is unpicked later, you can show that what you decided was appropriate when you made it.