Probate Carers Rights In A Will

Probate Q&A On Carer’s Rights In A Will:-

Question

My grandmother had a carer living upstairs who took care of her in the last five years of her life. The carer is saying that granny always said that she would be able to remain living in the house when my grandmother died.

There is nothing in the Will or any reference to this arrangement and no mention of the carer at all. The carer is contesting the Will. Does she have a claim on granny’s estate, I’m at my wits end and don’t know what I should do?

Answer:-

A person is entitled to make a Will leaving their property to any person or charity they wish. However, where a deceased person has made a promise to someone prior to their death and that promise is not reflected in their Will that person may have a claim on the Estate.

If your grandmother promised her carer that she would be able to remain living in the house after she died and the carer cared for your granny on this basis, then your grandmother may have an obligation to fulfil this promise at law. Where the carer has suffered a detriment as a result of meeting her side of the bargain then the Court will enforce this promise against your grandmothers Estate.

The carer will need to provide evidence in Court that this promise was made by your grandmother. This evidence could be from independent witnesses who your gran told of her promise, or who overheard conversations between your grandmother and her carer that mentioned this promise.

The Executor of your gran’s Estate may produce evidence showing that she had made no promise to the carer. This evidence could be gleaned from notes made by her solicitor when she made her Will as well as independent witnesses who discussed her wishes with her when she was alive.

If the Court decides, based on the evidence, that your grandmother had not made this promise to her carer, the carer may still be able to make a claim under the Family Provision Act. To make a successful claim under this Act the carer would need to prove that she is an eligible person under the Act. Eligible persons include the following groups of people:

  • The wife or husband of the deceased including de facto partners and life partners;
  • A child of the deceased, or a child of a domestic relationship with the deceased;
  • A former wife or husband of the deceased;
  • A person who was, at any time, wholly or partly dependent upon the deceased limited to a   grandchild of the deceased person or a member of a household in which the deceased person was a member.

If your gran’s carer proves that she is an eligible person then she must show the Court that there is some reason for her to receive a financial benefit from the Estate. This is based on the relationship with the deceased and what the Court calls a “moral obligation” to provide for an eligible person. If the Court decides that your grandmother had a moral obligation to provide for her carer and the carer was financially dependent upon your granny then the Court may alter your grandmother’s Will to provide financial assistance to the carer.

Defending a contested Will such as the example above involves complex questions of law.

Graeme Heckenberg is an probate lawyer and will be able to guide you in the process and represent your case in the Supreme Court close to his Sydney city office. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a Will dispute or Estate matter, call today for a an appointment closer to home on 9221 0341

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