“Carers” gain rights to claim against estates

Catchwords: Family law, personal care, Family Provision, Succession Act, domestic relationship, de-facto relationship, close personal relationship

So called “Personal carers” and have rights to claim against deceased estates following changes in 1999 to the Family Provision Act (FPA), now the Succession Act(“SA”).

Before that the “personal carer” had to be at least partly dependent on the deceased if they weren’t a child, spouse, de facto spouse or former spouse, to be eligible under the FPA.

Now just a “personal carer” can be eligible, such as a mother for a sick child or a relative for invalid, poorly person or just a friend living in the house.

There could be many examples but now “dependency” is not crucial to that claim.

These changes came into force on 29 June 1999 with the commencement of the so-called ‘care bear’ legislation brought in under the ‘Property (Relationships) Act‘ (PRA).

This took over from the old ‘De-facto Relationships‘ Act where couples ceased living together after that date and allowed same-sex couples to claim statutory property adjustments on the basis of their de facto spouse status.

However, personal carers also obtained rights in domestic relationships and in claims against Estates.

To claim against an estate under the ground using the SA, you have to be living in a “domestic relationship” at the time of the deceased’s death. This is defined as either a “de-facto relationship” or a “close personal relationship”. (5PRA) The section does not elaborate on the latter.

However, it is apparent that you don’t have to be living as a couple to qualify but that you do have to be “living together”, for instance, as a house companion.

You also have to provide “domestic support and personal care”.

Excluded are persons who do this for fee or reward, or on behalf of another person or government body.

Non-related personal carers left out of wills who were living with the deceased at the time of death have been successful in bringing claims for provision under the SA following the care bear amendments.

Interestingly, while parties to former domestic relationships don’t qualify for the new PRA property adjustments (unless they ceased the relationship after 29 June 1999), they have been held to qualify for provision under the SA even if the deceased died before that date, provided that claim was made after that date.

So the care bear amendments can act retrospectively against an estate but not retrospectively in a relationship property adjustment.

People concerned about the potential care bear claim can enter into a “domestic relationship agreement” while the person in need of care is alive.

Or you can always pay the bear!

Jonathan de Vere Tyndall

Article updated 7 January 2015, originally published in The Land 2 August 2001

Editors note: The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents.