It is not uncommon for children born with severe abnormalities or injuries to die in childhood. In a recent case, the Court of Protection was required to decide how to divide the estate of a child who died when the lump-sum compensation settlement for injuries he suffered at birth was still largely intact.
The boy was born when his mother was 18. His injuries meant that he would need care and around-the-clock supervision for the whole of his life. His mother, whose own health was permanently damaged by the birth, looked after him for the early part of his life, but he was then taken into foster care and a guardian over his affairs was appointed. His biological father denied paternity and played no part at all in the boy's life.
His birth injuries had led to a claim against the NHS trust responsible for his delivery and that led to the settlement, which consisted of a six-figure lump sum and annual payments exceeding £80,000.
When his foster carer died, the fostering arrangement was transferred to other members of her family. They looked after the boy, regarding him as a member of the family, until he died when he was thirteen years old.
When he had only days to live, the family came to a provisional agreement as to how his estate should be dealt with, but the emotional upheaval at the time meant it was not put into effect by the creation of a statutory will.
His estate was valued at more than £600,000 and the Court of Protection was asked to decide how it should be distributed. The Court concluded that the boy would have always lacked the mental capacity to make a will. Were the rules of intestacy to apply, the child's biological father would inherit half of his estate.
The decision of the Court was that the caring family should inherit the house that had been bought and modified for him to live in, free of Inheritance Tax, and that his mother should inherit the residue of his estate. His biological father received nothing.