It is not uncommon that when I am instructed in relation to a contested probate claim, particularly in cases where the parties are siblings, that the question of care might arise.  Often this is a highly emotive topic where one sibling feels they did more than their ‘fair share’ of looking after their parent(s) in their final years.  Perhaps they even had mum or dad (or both) come to live with them.  Caring for an elderly relative is a wonderfully kind thing to do, but no one will pretend that it isn’t also extremely difficult.  However can and should that be recognised by the carer receiving more from the estate?

Is there a claim for more money arising from care?

In short, no.  There is no standalone claim which would allow a family member or friend who cared for the deceased to be reimbursed for their time from the estate.  There is no obligation requiring someone to make greater (or any) provision in their will for one of their family members simply because they were providing care.

That being said, it might sometimes be relevant in relation to a probate claim relating to a broader issue.  There are a number of different probate claims but this is probably most like to arise in a 1975 Act claim.  When dealing with a 1975 Act claim, we are looking at a claim for reasonable provision from an estate where such provision has not been made.  In the case of children of the deceased, this will be provision as is reasonably required for their maintenance.

There are a variety of factors the court will consider when deciding what reasonable provision might be, including the needs and resources of the applicant, the size of the estate and the needs and resources of any other beneficiary.

Commonly, when I am instructed I hear statements such as “I cared for mum/dad at home for years, if it wasn’t for me there wouldn’t be any money left” or “I’ve spent years caring for mum/dad, unable to earn anything for myself”.

At first blush these two statements seem almost identical.  However one of them is likely to be a factor relevant to the court’s decision and one is not.

I cared for mum/dad at home for years; if it wasn’t for me there wouldn’t be any money left

In this scenario, one sibling is suggesting that by caring for their parents at home, they have prevented the inheritance being spent on care and should therefore receive a bigger share of it.  Unfortunately, this isn’t going to hold much water with the court.  If mum or dad wanted, in recognition of the care they have received, to change their will in their lifetime to leave a larger proportion of the inheritance to the child who cared for them, they would (usually) be entitled to do so – assuming of course they had capacity.

After their deaths, the situation is different.  The factors the court will take into account don’t always include whether there was a moral obligation as a standalone point.  A moral obligation to provide for a child might be a factor where there are other issues, but it isn’t the court’s job to decide if the testamentary wishes of deceased people are ‘fair’.  It is the court’s job to determine if reasonable provision has been made.

I’ve spent years caring for mum/dad, unable to earn anything for myself

As above, this second statement might sound the same.  However on closer inspection, what the applicant is saying here is that caring for mum and/or dad has hindered their own income and ability to care for themselves.  It may also be that in caring for mum and dad, this sibling was living at home, without employment or income, and perhaps not paying rent.  They might have been providing care but they were also being maintained by their parents to an extent, for at least a period prior to their deaths.

In those circumstances, it may well be reasonable for additional provision to be made for that child.  However it is the dependency and maintenance that is the relevant factor rather than the provision of care per se.  The provision of care might in those circumstances be taken into account as a factor “in all the circumstances of the case”.

Giving additional inheritance to account for care

The above might seem unfair.  After all, care is expensive and it’s not uncommon that where a person has had complex care needs, received a very high standard of care, or been in care for a very long time, that the estate might be significantly or entirety depleted as a result of the costs of care.  You might agree that the sibling (as is normally the case) who provided the care might be rightfully aggrieved that this is not recognised. 

In some cases the family of the deceased might agree between them that they would want vary the estate to provide additional provision for a family member who provided care.  It is possible to vary your entitlement under an estate to give more to someone else.  However this is something that normally needs to be done by agreement.

There are also caveats.  For example, if the beneficiaries of the estate include minors or people without legal capacity, the court will need to approve the variation.  The court will need to be convinced that the variation is in the interests of the minor/vulnerable person, and taking money away from them is almost never going to be in their best interests.  Those in receipt of means-tested benefits should also be careful, as voluntarily giving away inheritance can be a deliberate deprivation of capital which could affect their entitlement to benefits.

The timing of the variation can also have tax consequences – which are sometimes both unintended and detrimental.

There are many things people instruct lawyers to do for them which theoretically you could do yourself.  I would suggest that varying a will or trust should not be one of them, and would always recommend taking professional advice if you are considering varying an estate.

If you have any questions about the matters raised in this article, contact Toby Walker by email or on 01494 893512.