by Professor Alexandra Braun, Lord President Reid Chair of Law
According to the Scotland’s Carers research report published in 2015, and the latest update release of April 2022, approximately 700,000 people provide unpaid care and the value of such unpaid care in Scotland is estimated at over £36 billion a year. For comparison, in 2019 the NHS Scotland budget was £13.4 billion. Often such unpaid care is provided by family members, frequently but not always women,[1] and in some cases neighbours and friends. The assumption seems to be that domestic care services are intended to be gratuitous and are thus provided for free. Indeed, domestic care services are sometimes described as ‘labours of love’. But while domestic care services might well be motivated partly by love and affection or a sense of duty, this does not necessarily mean that they should not be compensated, especially since such services can be of significant economic and personal benefit to the care-recipient. My question then is can domestic unpaid care services be compensated on death of the care-recipient through a claim against their estate?
Obviously, where the deceased has made a will in favour of the carer, they would obtain some compensation provided that there is something left to distribute after all the debts of the deceased have been paid. While this means that the carer may have to wait for a long time before being compensated, they could potentially receive more than the value of their services, though the contrary is also possible, as the testamentary disposition may well be inadequate. Joshua Tate has argued that in the US, broad testamentary freedom is defensible precisely because it allows elderly people to reward family members who have provided elder care (see J Tate, ‘Caregiving and the Case for Testamentary Freedom’ (2008) 42 UC Davis law Review 129, 179). But of course, there is no guarantee that testators will exercise their testamentary power in favour of their carer. A testator may deliberately choose not to compensate the carer or may make a will many years before the need for care arises, or may never get round to making a will, or when they do they may lack the necessary mental capacity. And, in any event, testamentary dispositions are revocable up until death. Also, the caregiver who benefits under the will is exposed to the risk that the will is challenged by the next of kin, for instance, on grounds of lack of capacity or undue influence or lack of formality. Leaving compensation entirely to the decision of the deceased thus seems unsatisfactory, especially since we know that most Scots die without a will (see D Reid, ‘From the Cradle to the Grave: Politics, Families and Inheritance Law’ (2008) 12 ELR 391, 413).
In the absence of a will, or where the will does not provide for the carer in a sufficient manner, or its validity is successfully challenged, what other avenues can a carer pursue on death of the person they cared for? Scots law recognises family protection through a system of fixed shares in the form of legal rights which can be claimed both on intestacy and in the presence of a will. However, legal rights can only benefit the spouse or civil partner and the children (or the grandchildren if a parent has predeceased) of the deceased, and the share is fixed, meaning that it does not necessarily reflect the value of the care services provided. Also, legal rights are confined to the moveable estate of the deceased so that depending on the composition of the estate, the share may not be substantial. They are in fact often modest.[2] And while collatable advances can be deducted from the legitim (which is the part of the deceased’s moveable net estate to which the children are entitled), it is not possible in Scotland to obtain an increase of the legitim based on services rendered by the children, even if such services have enriched the deceased’s estate. Thus, each child will receive exactly the same by way of legal rights irrespective of whether or not they have provided care services. Moreover, where the will contains a provision in favour of the spouse or civil partner or any of the children, it is deemed to be in satisfaction of that beneficiary’s legal rights. For that reason, if they accept the benefit under the will of the person they cared for, they are deemed to have discharged their legal rights. Thus, it is not the case that the spouse/civil partner or child can claim both the benefit under the will and their legal right should the benefit under the will not reflect the value of their care services. And if there is no will and intestacy rules apply, the estate is often wiped out by the surviving spouses/civil partners’ prior right. Also, the intestate share of the child who cares for the parent is not increased but each child gets the same, unlike for instance in Germany (see §2057a BGB). Thus, in Scotland, even those carers who are entitled to legal rights against the estate of the care-recipient will not be able to obtain adequate protection through their legal rights.
What other claims might a carer currently have against the care-recipient’s estate? If the deceased had promised that they would benefit the carer through a disposition in their will, or had entered into a succession contract whereby they would leave their estate or part of it to the carer, then a contractual claim might be available to the carer. However, if the promise concerns land it needs to be in writing, and often such promises are made informally.
Failing such writing and thus a contractual claim, an unjustified enrichment claim might be available. The decision of the Outer House in Harris v Douglas (14 February 2003), unreported, sub nom Harris v Sales’ Executors 2003 GWD 7-186, OH dealing with a claim for recompense for care provided to an elderly couple would suggest that where an informal testamentary promise is broken, the disappointed carer could obtain recompense through an enrichment claim. However, the strength of the authority is diminished by the fact that the decision is inconsistent with earlier cases which are not referred to by the court (see NR Whitty, ‘Unjustified Enrichment (Reissue)’ in Stair Memorial Encyclopaedia [324]). Also, the care recipient may not have made any promises. In the absence of a promise to benefit the carer under the will, the carer could still try to obtain recompense for requested or freely accepted care services. That said, the carer would need to show that the defender’s retention of the benefit of the care services is without legal justification. This will be satisfied only where the defender (1) knowingly accepted the benefit; (2) requested or demanded the services or continued to receive them after the pursuer’s request for payment for them; and (3) having had the opportunity to reject the services, chose to accept them in circumstances where he knew or ought to have known that the pursuer expected payment for them (see Whitty [447]). Meeting these requirements will not, however, always be easy and in fact often be difficult. And where the care-recipient is incapable of giving either request or assent to the provision of care, recovery is possible only in very limited circumstances (see Whitty [443]-[454], especially para 445).
If the enrichment action is successful, the carer would count as a creditor, meaning that their claim would prevail over claims by those who have a legal right against the estate and those benefitting under the will. At the same, an enrichment claim puts the carer in a position of having to argue and prove that their actions have unjustly enriched the care-recipient who is normally a person they are likely to have been emotionally close to, something which they might find psychologically and emotionally difficult.
Thus, under Scots law, unpaid carers who are not in a contractual relationship with the care-recipient, or adequately provided for in their will, only have limited possibilities of bringing a claim against their estate. The value of informal care rendered in the family context is not currently recognised by way of a specific entitlement of the carer against the estate of the care-recipient, whether in the form of an increased intestate share or legal right or in any other form.
Yet, there are other contexts in which the value of informal unpaid care services receives legal recognition in Scots law. For instance, through the Administration of Justice Act 1982, Scots law recognises the value of informal (unpaid) care in personal injury cases where the victim is no longer able to provide gratuitous personal services to a relative (section 9) or needs to be cared for by a relative as a consequence of the injury (section 8). As for the latter, section 8 establishes that where a person has been injured, necessary services (which include nursing care, help with bathing, housekeeping, shopping but also emotional support)[3] rendered by a relative to the injured person in consequence of injuries can be compensated by way of a claim against the person responsible for the injury. This is the case unless the relative has expressly agreed that no payment is to be made in respect of the service. While the relative caring for the injured person does not have a direct action against the person responsible for the injury, the injured person has a claim for reasonable compensation (and reasonable expenses) but is under an obligation to account to the relative who has provided the necessary services. By contrast, section 9 of the 1982 Act, dealing with instances in which the carer suffered personal injuries, states that a reasonable sum can be claimed for personal services, as long as they are of a type which are normally offered gratuitously to relatives, but which, when rendered by a person other than a relative, are ordinarily obtainable only on payment.[4]
The developments that led to the introduction of sections 8 and 9 of the Administration of Justice Act 1982 are of great interest. The Act is largely based on the Scottish Law Commission Report of 1978 on Damages for personal injuries (Scot Law Com No 51). The rationale underpinning the 1978 proposals seems to have been primarily to ensure that the loss of income (suffered because the caring relative, often the wife, would frequently give up their employment or could no longer provide personal care) should not be borne by the family unit. Even so, it is important that the SLC put an economic value to informal unpaid domestic services and suggested that it should be recognised through the provision of a claim. It recognised that the provision of such services mostly falls upon close family members and that they are rarely paid. It further acknowledged the significant sacrifices that some relatives make when caring for another family member and that such sacrifices are not infrequently part of an informal arrangement among family members or are based on expectations of a counterpart, be it of tangible or intangible nature. The 1978 Report states, in fact, that [20]:
“Services rendered by persons within the family group are often motivated by a high sense of duty, and in order to render them members of the family may be prepared to make considerable sacrifices, including leaving their employment. But they may expect, in the long run, to receive some benefit as a counterpart, though not necessarily a benefit of a tangible nature”.
Later on, at para [38], the Report further states that:
“With the family group, for practical reasons, a system of division of labour and pooling of income obtains in which, though in law the services are rendered gratuitously, they are in practice a species of counterpart for the benefits which that member receives as a member of the family group”.
The SLC Report thus demonstrates an awareness not just of the fact that what might appear gratuitous in the eyes of the law might not in fact be so, but also that, as I have tried to show elsewhere, the distinction between gratuitous and non-gratuitous transaction is often a difficult one to draw, since inter- and intra-generational exchanges are not uncommon in the domestic context. Importantly, the SLC further recognised, at para 18, that ‘[t]he need for a contract, indeed, seems artificial in a context where the parties come under contingent legal obligations of assistance and support.’ To this one might further add that such a requirement fails to account for social reality, whereby the likelihood of there being a contract between the parties is usually very slim given the context in which care services are performed and the nature of the relationship between the parties involved. Limiting protection only to such cases seems unsatisfactory.
Given that we recognise the value of unpaid informal care in this context, should we not recognise it also in the context of the distribution of a care-recipient’s estate? After all, even though personal or nursing care in Scotland is free for those eligible for such services, family members and friends still provide a significant amount of care that goes currently unremunerated. And such care can often be of significant economic but also personal benefit to the care-recipient.
The Scottish Government is currently considering revising the law of intestacy. While the compensation of care is not presently on the agenda, and compensation of care should not just be limited to instances of intestacy, might this be an opportunity to explore ways of acknowledging the value of unpaid domestic care provided to the deceased?
[1] The Scotland’s Carers research report states that ‘The Scottish Health Survey shows that overall 41% of carers are male and 59% are female but also that working age women are much more likely to be carers than men’. And, according to the Independent review of Adult Social Care in Scotland, many unpaid carers are women.
[2] KGC Reid, ‘Legal Rights in Scotland’ in KGC Reid, MJ de Waal and R Zimmermann (eds), Comparative Succession Law, vol III: Mandatory Family Protection (OUP 2020) 417, 436.
[3] McMillan v McDowall 1993 SLT 311.
[4] For further details see EC Reid, The Law of Delict in Scotland (EUP, 2022) para 31.41.
