CAN A CARER CHALLENGE A WILL

When people get older they often need assistance in day-to-day living. They may have no children to help them, or their children may be unavailable. Sometimes relatives, friends, or neighbours step in to assist. Older people need to be aware that even though an unpaid carer has no automatic right to challenge a will, if they can establish eligibility they may be able to do so.

Carers may be able to do that by providing evidence that they were living with the deceased at the time of his or her death in a close personal relationship, and that they were providing them with domestic support and personal care for no (usually financial) reward.

The carer would also need to demonstrate that there are “factors warranting an application’: Such factors might create a moral obligation that the deceased would provide for them in their will.

Skarica v Tosca 2014 provides an example. The unpaid carer/previous “boyfriend” was eligible because he had a close personal relationship with the deceased and he also provided her with domestic support and care.

He was also able to establish that there were “factors warranting”: he was someone who, in her contemplation, may have had a reasonable expectation of inheritance from her estate and she did explain in her will why it was that she had made no testamentary provision for him. Also, the applicant provided the deceased with domestic support and care after the date upon which the deceased made her will and left him out of it.

 BE AWARE

Under some circumstances carers could be eligible to challenge a will: it might be wise to ensure that anyone who cares for you is paid adequately and that there is evidence of this.

Willmakers do have the freedom to decide who will inherit their property but they need to know that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes.