by Professor Alexandra Braun, Lord President Reid Chair of Law

In a previous blog entry, I examined whether current Scots law allows unpaid domestic carers to bring a claim against the estate of the person whom they have cared for. We saw that in Scotland, unpaid carers who are not in a contractual relationship with the care-recipient and who have not been provided for in the care-recipient’s will, only have a limited set of possible options and that the value of informal care is not currently recognised by way of a specific entitlement against the estate of the care-recipient. What is the situation elsewhere?

South of the border things are not necessarily much better for informal carers, except perhaps where they have acted to their detriment in reliance on a promise that they would benefit under the will of the care-recipient. In that case the carer can bring a proprietary estoppel claim and argue that that the care-recipient should be estopped from reneging on the promise, even if the promise was expressed informally (for details see A Braun, Claiming a Promised Inheritance: A Comparative Study (OUP, 2022). In the absence of such a promise, carers could try to obtain compensation through a family provision order, based on the Inheritance (Provision for Family and Dependants) Act 1975. However, this is only possible if they fall among those eligible to bring a claim (i.e. a spouse or civil partner, former spouse or civil partner, child, child of the family or dependant of that person) and can show that the will, or the law relating to intestacy, has not made a reasonable financial provision for them. Also, in evaluating whether that was the case, the court must have regard, among other things, to the financial resources and financial needs of the applicant (s3(1)(a)), so that a claim of an adult applicant is unlikely to be successful unless they were in financial need. Indeed, under English law, adult children usually need to show special circumstances or a moral obligation on the part of the deceased, for instance, because they have provided services on the understanding that they would inherit from their parent (see R Kerridge, ‘Family Provision in England and Wales’, in Comparative Succession Law 3 (2020) 396, 397-402). Even so, the point of the order is not to ‘compensate’ the applicant for the value of the care services provided. Spouses and civil partners aside (who can claim what would be reasonable for them to receive, whether or not required for maintenance – see s 1(2)(a) and (aa)), other applicants can only ever claim ‘reasonable financial provision’, meaning ‘financial provision as it would be reasonable in all the circumstance of the case for the applicant to receive his maintenance’.

Thus, the protection of carers under the 1975 Act is limited. Brian Sloan (see B Sloan, Informal Carers and Private Law (Hart Publishing 2013) 172-5) has therefore argued that the legislation should be reformed so as to recognise the carer as a category of applicant in their own right, and to take account of care in satisfying claims by those eligible. Drawing on developments in other common law jurisdictions (eg New South Wales), where legislatures have found a way to include carers, Sloan has criticised the England and Wales Law Commission and its decision to reject the inclusion of a separate category of carers on the basis that ‘identifying precisely who was to benefit and why’ would be difficult (see Law Commission, Intestacy and Family Provision Claims on Death, Law Com No 331, 2011 [6.90-94]).

As I have shown elsewhere, in civilian jurisdictions, enrichment law or employment can sometimes come to the aid (see Braun above chapters 8 and 9). Also, in Germany, it is possible for the intestate heir to ask for an adjustment of their intestate share on the grounds that they have cared for the deceased (see § 2057a BGB discussed in Braun above chapter 11). Another interesting approach to the compensation of care on death of the care-recipient is offered by Austrian law. In the context of the 2015 reform of its succession law, it introduced a statutory care legacy (Pflegevermächtnis). § 677 ABGB establishes that:

“a person who is close to the deceased and who has cared for the latter for at least six months in the last three years prior to his death for a not insignificant degree, shall be entitled to a statutory legacy, unless a donation has been made or remuneration agreed”.

The purpose behind the introduction of this legislative provision was, in the words of the drafters (see ErläutRV zu § 677 ABGB), a desire to remedy:

“the fact that not infrequently sacrificial and extensive services performed by relatives fall by the wayside. Often care services are rendered to the deceased out of an obligation to provide assistance or due to moral reasons that are valuable both from an emotional, but also a monetary perspective, but no compensation has been provided”.

Thus, the provision is a response to the awareness that care services provided by family members often remain unremunerated even though they can provide valuable economic but also non-economic benefits to the care-recipient.

For a care legacy to arise, the unremunerated care must have been provided for at least six months within the last three years preceding the care recipient’s death, and it must have been more than insignificant. According to the explanatory notes, the ‘more than insignificant’ test is usually met if the care was provided on average for more than 20 hours per month (ErläutRV § 688 BlgNR 25, GP 17). Although the requirement of 20 hours for at least six months is arguably low, one must remember that the promisee is only entitled to a legacy for the care provided during the last three years. § 677 ABGB does not, therefore, provide adequate protection to those who provided care for longer than three years. They will have to bring an enrichment claim, unless it is possible for them to imply an employment contract, but of course such claims are linked to higher costs as they involve bringing a claim in court. By contrast, claiming a statutory care legacy is not usually costly because compensation can be demanded in the course of the probate procedure (Verlassenschaftsverfahren) that opens automatically when a person dies. This means that courts get involved only if the Gerichtskommissär in charge of the probate procedure cannot reach a consensual agreement between the heirs and the carer.

Interestingly, the notion of ‘care’ is broad, for the Austrian legislature does not require that the claimant provide nursing services. Care can consist of other forms of support, provided that the deceased needed care within the meaning of the relevant social security laws. The range of carers who can bring a claim is also broad (the spouse and registered partner, children and grandchildren, parents, siblings, grandparents, uncles and aunts, cousins as well as great grandparents, but also the spouse, registered partners or cohabiting partners of the deceased’s intestate heirs, as well as the cohabiting partner of the deceased herself, and the children of the cohabiting partner) including, for instance, cohabitants but also daughters in law, though it does not currently include friends and neighbours, which is arguably a limitation.

As far as the amount of the compensation is concerned, according to § 678(1) ABGB, the size of the care legacy that can be claimed depends on the type, duration, and extent of the care provided. The explanatory notes specify however that the legacy will be quantified primarily, though not only, on the basis of the benefit obtained by the deceased, in particular any savings on the part of the estate, e.g. in the form of payments for services provided by another person, though not the costs of professional care (see ErläutRV 688 BlgNR 25, GP 17). Thus, the care-recipient’s enrichment represents the basis or starting point, but a promisee can potentially obtain more than the value of said enrichment.

While the requirements are not difficult to meet, and the range of people who can benefit is overall quite broad, the Austrian model is not without its problems. For instance, the carer will not count as a creditor of the deceased. Debts are paid first, though carers will benefit before any legatees. What is more, under current law the deceased can potentially exclude the operation of the statutory care legacy, which defeats the purpose. Thus, from the perspective of an informal carer, the model can be improved and arguably in some ways it does not go far enough where the carer has performed services for many years. Even so, the Austrian care legacy shows that unpaid care can be remunerated on death of the care-recipient and that concerns about practical difficulties can be addressed. In other words, objections that care varies from case to case, that it is difficult to establish what counts as care and to quantify the economic value of care, but also to draw a line between services that should be remunerated and those that should not, can be overcome. This is further shown by the fact that, as I outlined in the previous blog entry, in Scotland, unremunerated informal care services can be compensated in the context of personal injury claims under the Administration of Justice Act 1982.

As to other potential objections to the idea of compensating care on death of the care-recipient, testamentary freedom does not seem to represent a strong objection to the compensation of care in the testamentary context, given the restrictions that Scots law already allows through the recognition of legal rights. And the concern that someone might impose their services even if unwanted and unsolicited onto a person can also be addressed by requiring, for instance, that the deceased has accepted the care service for a certain period of time.

What about the argument that such care services are rendered out of love and affection and that compensation would lead to a commodification of relationships of love and affection? Again, this does not seem to be an argument that should stand in the way of a claim against the care-recipient’s estate. Motives underpinning domestic care are often mixed, and feelings of love and affection do not necessarily exclude that the carer may also have expected to be remunerated in some form. In this respect it is useful to note that for the purposes of claims based on article 8 of the Administration of Justice Act 1982 which, as I mentioned, deals with cases where the injured needs to be cared for by a relative, the fact that the necessary services were also provided due to the bond of affection between the parties does not seem to stand in the way of a claim. In fact, in Howie v Upper Clyde Shipbuilders Ltd (OH) 1990 SCLR 381; 1991 SLT 2, Lord Cameron of Lochbroom stated (on page 4) that:

“It is reasonable to make allowance in the appropriate case, it seems to me, for the fact that the relationship between the relative and the injured party may be such that what would otherwise be regarded as necessary services may be given by reason of the bond of affection naturally arising within the particular relationship. But merely because the services involve husband and wife and may consist in giving comfort and support does not, in my opinion, mean that they are not given as necessary services rendered in consequence of the injuries in question”.

Thus, there do not seem to be any strong objections to compensating unpaid domestic care services in the context of the distribution of a care-recipient’s estate. There is also no doubt that unpaid informal care is vital, and not just because of its economic value. To be cared for (and die) in one’s own home can be of enormous value to care-recipients. It may also be in the interest of public finances that care is provided by relatives and friends. But care tends to fall disproportionally on certain people and, as the Austrian drafters were clearly aware, it involves significant sacrifices that should not go unacknowledged. Here, private law has a role to play, and ways should be explored to recognise the value of unpaid domestic care in the testamentary context.

Dec 7, 2022