Informal Carers and Private Law 9781472566270, 9781849462815

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This book is dedicated to the memory of my grandparents Charlie Sloan (1918–2007) and

Agnes Sloan (née Mason) (1925–2011)

Preface Do not call me the carer. I am not the carer. I hate caring. I hate the thought. I hate the word. I do not care and I do not care for. I am here; she is there. Alan Bennett, The Lady in the Van: A Play, Act Two

Every day, whether they acknowledge it or not, large numbers of altruistic individuals provide substantial and essential services for elderly and dis­ abled people in the absence of any legal duty. In doing so, many such informal carers suffer financial and other disadvantages. This book con­ siders the scope for a ‘private law’ approach to rewarding, supporting or compensating carers in their vital role, in English law and beyond. As most of those who knew me in 2007 can attest, finding a topic for my doctoral thesis was a painful process. I was fascinated by the issues raised by the sorts of personal relationships, typified by that between the Burden sisters,1 that are not usually a target of family law at all. Some of my con­ temporaries seemed to think I was writing a whole thesis on the Burden case, but the focus of my inquiry ultimately became a small aspect of one of the great questions of our time. That may sound rather big-headed, but any big-headedness is balanced by two major factors. First, I make no claim to have solved what I might call the ‘conundrum’ of providing and paying for the social care upon which increasing numbers of us will depend in the decades to come. Indeed, the thesis that was somehow sub­ mitted in August 2010, and is now presented in a revised, expanded and updated form, probably raised more questions than it answered. No doubt that will annoy many readers of the resulting book and at least one of my supervisors, but it is a symptom of the reality that the solution to the complex social ‘problem’ of care cannot be left solely, or even mainly, to lawyers. Secondly, some will find my decision to focus on private law at best strange and at worst offensive. Nevertheless, I still maintain that the ‘private law of carers’ was a subject worthy of investigation, not least because there is so much of it out there. I hope this book will be of some use to those working in private law and others who have an interest in social and legal perspectives on care. It would be seriously remiss if I did not express gratitude to a number of people, without seeking to diminish my responsibility for what fol­ lows. My greatest academic debt is undoubtedly owed to my doctoral 1   Burden v United Kingdom App no 13378/05 [2007] 1 FCR 69 and [2008] 2 FLR 787, dis­ cussed in section 6.2.2 below.

viii  Preface supervisors, Professor Kevin Gray and Dr Jens M Scherpe. I have learned a very great deal from them over the past five or more years (though I have perhaps absorbed less than they would have liked), and thanks to their input this book is infinitely less garbled and error-ridden that it oth­ erwise would have been. Sincere thanks are owed to my examiners, Professors Alison Clarke and Jonathan Herring; I hope I have made good use of their constructive comments in the following pages. I am very grateful to the Trustees of the WM Tapp Fund at Gonville and Caius College for funding a significant portion of the research presented in this book, and to the Fellowship there for accommodating me as a research student. Thanks are also due to the Trustees of the Bob Alexander Fund at King’s College, Cambridge, where I was a Fellow when I completed the manu­ script for this book. My colleagues there were an invaluable source of sup­ port, understanding and advice while I wrote up the thesis upon which this book is based. Particular mention must be made of Jake Rowbottom (now at University College, Oxford), Advocate General Eleanor Sharpston QC and Jim Trevithick. Many conversations and other interactions have influenced the book. I hope that inclusion in the following (inevitably non-exhaustive) list gives at least some recognition to those who have helped to shape my work: Guy Adams, Professor Neil Andrews, Dr Andrew Bainham, Neil Beresford, Professor Hugh Bevan, His Honour Judge (Stuart) Bridge, Professor Michael Bryan, Professor Peter Cane, Dr Mindy Chen-Wishart, Dr Isabel Clare, Paul Davies, Professor Simon Deakin, Dr Martin Dixon, Dr Anatol Dutta, Dr Matt Dyson, Professor Eilís Ferran, Dr John Ford, Dr David Fox, Amy Goymour, Andrew Hayward, Professor Tony Holland, Ruth Hughes, Professor David Ibbetson, Paul MacMahon, Nick McBride, Robin McCaig, Professor Ben McFarlane, Professor John Mee, Jo Miles, Professor Charles Mitchell, Richard Nolan, Jane Oakes, Dr Mika Oldham, Dr Janet O’Sullivan, the late Dr Amanda Perreau-Saussine de Ezcurra, Professor Rebecca Probert, Dr Pippa Rogerson, Professor Francis Rose, Professor Bob Rowthorn, Professors Johan and Susan Scott, Dr Andrew Simpson, Professor Jane Stapleton, Professor Masayuki Tamaruya, Professor Nathan Tamblyn, Dr Peter Turner, Professor Andre van der Walt, Professor Graham Virgo, Dr Emma Waring and Dr Mary Welstead. As a research student I had the distinct pleasure of spending some time as a Visiting Scholar at the Catholic University of Leuven’s Instituut voor Familiaal Vermogensrecht. I wish to express sincere gratitude to Professor Walter Pintens for hosting me in Leuven, and for all he has done for me subsequently. Closer to ‘home’, Hazel Dean, Kay Naylor, Kathy Wholley, David Wills and Peter Zawada at the Squire Law Library have been immensely helpful,



Preface ix

and my students have kept me both entertained and intellectually stimu­ lated. Aspects of the research contained in this book have been presented in Cambridge at Caius Graduate Arts Society (CGAS), the Centre for Corporate and Commercial Law (3CL), the Centre for Public Law, the Centre for Research in the Arts, Social Sciences and Humanities (CRASSH), a colloquium held at Clare College in memory of Professor Kurt Lipstein, the Comparative Law Discussion Group, the Fourth Conference of the Commission on European Family Law, a Goodhart Seminar and the Interdisciplinary Graduate Conference. I must acknowledge the invitations to present my work and the contributions of the various participants. I could not have started, let alone finished, this book without the unfail­ ing encouragement of the Warden and Fellows of Robinson College, Cambridge, where I took my undergraduate degree and my LLM. Particular credit goes to Dr Isabella Alexander (soon to be at the University of Technology, Sydney), Revd Dr Maggi Dawn (now at Yale), Professor Christopher Forsyth, Dr Markus W Gehring (soon to be at Hughes Hall, Cambridge), Dr Joanna Page, Dr Rebecca Williams (now at Pembroke College, Oxford) and Professor David Yates. It is fitting that by the time this book sees the light of day I will have returned to Robinson as a Fellow. Richard Hart and Rachel Turner at Hart Publishing have bravely and expertly allowed my endeavours to be released into the public domain. On a more personal level, my PhD contemporaries at Cambridge facil­ itated the welcome distractions of food, wine and laughter (all in copious quantities). My parents, my brother Brendan, my grandmother and my extended family have not only tolerated but enthusiastically supported my various ambitions. Dr Kirsty Hughes has been instrumental in ena­ bling me (successfully?) to retain my sanity even while I wrote a thesis and then a book. To all of them I owe more thanks than I can express. Finally, and perhaps more by way of apology than thanks, I must recog­ nise Siôn Hudson’s unending patience. My aim in this book is to engage with law and policy as they stood on 30 April 2012, although it has been possible to incorporate some later developments. Brian Sloan King’s College, Cambridge 6 August 2012

Table of Cases United Kingdom A-G of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd [1987] AC 114 (PC)........................................................................................ 46 Abram (decd), Re [1996] 2 FLR 379 (Ch)..................................................... 197 Adekunle v Ritchie [2007] EW Misc 5 (EWCC); [2007] BPIR 1177............. 83 Allcard v Skinner (1887) 36 Ch D 145 (CA)................................. 224, 226, 231 B v P [2008] EWHC 112 (Fam); [2008] 1 FLR 742........................................ 183 Baker v Baker [2008] EWHC 937 (Ch); [2008] 2 FLR 767........................... 140 Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221 (HL)............................................................................................................... 122 Barclays Bank v O’Brien [1994] 1 AC 180 (HL)................................... 220, 230 Barron v Woodhead [2008] EWHC 810 (Ch); [2009] 1 FLR 747................ 183 Basham (decd), Re [1986] 1 WLR 1498 (Ch).................................................. 42 Baxter v Baxter [1948] AC 274 (HL).............................................................. 210 Baynes v Hedger [2008] EWHC 1587 (Ch); [2008] 2 FLR 1805......... 154, 163 Baynes v Hedger [2009] EWCA Civ 374; [2009] 2 FLR 767............... 154, 159 Beaumont (decd), Re [1980] Ch 444.............................................. 153, 155, 159 Benedetti v Sawaris [2010] EWCA Civ 1427................................................ 125 Berkley Applegate (Investment Consultants) Ltd (No 1), Re [1989] Ch 32............................................................................................ 123 Besterman (decd), Re [1984] Ch 458 (CA).................................................... 182 Bibby v Stirling (1998) 76 P & CR D36 (CA).................................................. 35 Blackman v Man [2007] EWHC 3162 (Ch); [2008] WTLR 389.................. 221 Blue Haven Enterprises Ltd v Tully [2006] UKPC 17.................................. 57 Bouette v Rose [2000] Ch 662 (CA)........................................................... 157–9 Brightlingsea Haven Ltd v Morris [2008] EWHC 1928 (QB); [2009] 2 P & CR 11......................................................................................... 78 Burns v Burns [1984] Ch 317 (CA).................................................................. 81 Callaghan (decd), Re [1985] Fam 1............................................................... 200 Cameron v Treasury Solicitor [1996] 2 FLR 716 (CA)................................ 187 Campbell v Griffin [2001] EWCA Civ 990; [2001] WTLR 981......................................................... 19, 23, 50–2, 55, 58, 60, 71–2, 98, 140 Cattermole v Prisk [2006] 1 FLR 693........................................................ 231–2 Charles v Fraser [2010] EWHC 2154 (Ch); [2010] WTLR 1489................. 140 Charman v Charman [2007] EWCA Civ 503; [2007] 1 FLR 1246..... 183–6, 243 Chief Constable of Greater Manchester Police v Wigan Athletic FC [2007] EWHC 3095 (Ch); [2007] Po LR 246.............................................. 133

xiv  Table of Cases Churchill v Roach [2002] EWHC 3230 (Ch); [2004] 2 FLR 989................. 165 Clarke v Meadus [2010] EWHC 3117 (Ch); [2011] 1 P & CR DG18................................................................................................... 53, 80, 87 CMG, Re [1970] Ch 574 (Court of Protection)............................................. 227 Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752......................................................... 30, 32–3, 35–7, 41, 43–5, 48, 57, 65, 76–8, 81, 86, 97, 126, 129 Collins (decd), Re [1990] Fam 56..................................................................... 10 Cook v Thomas [2010] EWCA Civ 227............................................... 87, 121–2 Coomber, Re, [1911] 1 Ch 723 (CA)....................................................... 230, 235 Coombes v Smith [1986] 1 WLR 808 (Ch)................................................ 52, 59 Coventry (decd), Re [1980] Ch 461....................................... 136, 176, 196, 198 Cowderoy v Cranfield [2011] EWHC 1616 (Ch); [2011] WTLR 1699....... 221 Crabb v Arun DC [1976] Ch 179..................................................................... 48 Craig, Re, [1971] Ch 95................................................................................... 231 Craig v Lamoureux [1920] AC 349 (PC)....................................................... 138 Cressman v Coys of Kennington (Sales) Ltd [2004] EWCA Civ 47; [2004] 1 WLR 2775....................................................................................... 123 Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619; [2012] 1 P & CR 16................................................................................... 36, 86 Crown Prosecution Service v Piper [2011] EWHC 3570 (Admin)........ 81, 83 Dennis (decd), Re [1981] 2 All ER 140 (Ch)......................................... 177, 192 Deutsche Morgan Grenfell v IRC [2006] UKHL 49; [2007] 1 AC 558... 124–5 Drew v Daniel [2005] EWCA Civ 507; [2005] 2 FCR 365........................... 236 E, Re, E v E [1966] 1 WLR 709 (Ch)................................................................. 10 EBR Attridge Law LLP (formerly Attridge Law) v Coleman [2010] 1 CMLR 28 (EAT)............................................................................................ 9 Espinosa v Bourke [1999] 1 FLR 747 (CA)....................................... 192, 195–8 Estate of McGarrell [1983] 8 NIJB................................................................. 196 Eves v Eves [1975] 1 WLR 1338 (CA)............................................................. 81 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 (HL) 76....................... 127 Falcke v Scottish Imperial Co (1886) 34 Ch D 234 (CA)............................ 123 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 (HL)........................................................................................ 126 Fielden v Cunliffe [2005] EWCA Civ 1508; [2006] Ch 361................. 182, 185 Fisher v Brooker [2009] UKHL 41; [2009] 1 WLR 1764................................ 38 Fowler v Barron [2008] EWCA Civ 377; [2008] 2 FLR 831..................... 81, 83 Geary v Rankine [2012] EWCA Civ 555......................................................... 83 Gill v Woodall [2009] EWHC 3778 (Ch)....................................................... 221 Gillett v Holt [1998] 2 FLR 470 (Ch); [2001] Ch 210 (CA)................................................................. 30, 34, 37, 45, 54, 56, 62, 79, 94 Gissing v Gissing [1971] AC 886 (HL)...................................................... 81, 87 Goldsworthy v Brickell [1987] Ch 378 (CA).......................................... 227–30 Goodchild (decd), Re [1996] 1 FLR 591 (Ch)............................................... 197



Table of Cases xv

Goodchild v Bradbury [2006] EWCA Civ 1868; [2007] WTLR 463............................................................................................. 217, 231, 235–6 Goodman v Gallant [1986] Fam 106 (CA)..................................................... 80 Gorjat v Gorjat [2010] EWHC 1537 (Ch); (2010) 13 ITELR 312................. 234 Graham v Murphy [1997] 1 FLR 860 (Ch)............................................. 189–90 Grant v Edwards [1986] Ch 638 (CA)............................................................. 53 Greasley v Cooke [1980] 1 WLR 1306 (CA)....................... 37, 40, 50–1, 56, 65 Greater Manchester Police v Wigan Athletic FC [2008] EWCA Civ 1449; [2009] 1 WLR 1580............................................................................. 125 Gully v Dix [2004] EWCA Civ 139; [2004] 1 WLR 1399................................................................................... 154, 166, 170–1, 188 Hammond v Osborn [2002] EWCA Civ 885; [2002] WTLR 1125............................................................................. 23, 224, 231, 234 Hancock (decd), Re [1998] 2 FLR 346 (CA)......................................... 192, 195 Harrington v Gill [1983] 4 FLR 265 (CA)..................................................... 176 Henry v Henry [2010] UKPC 3; [2010] 1 All ER 988.................... 36, 55, 61–2 Herbert v Doyle [2010] EWCA Civ 1095; [2011] 1 EGLR 119...................... 78 Hogg v Hogg [2007] EWHC 2240 (Ch); [2008] WTLR 35...................... 226–7 Hoghton v Hoghton (1852) 15 Beav 278; (1852) 51 ER 545 (Ch)............... 220 Hubbard v Scott [2011] EWHC 2750 (Ch).................................................... 221 Hunt v Severs [1994] 2 AC 350 (HL)............................................................ 128 Ilott v Mitson [2011] EWCA Civ 346; [2011] 2 FCR 1................... 10, 138, 191 Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 (PC)........................ 235 Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2012] EWHC 458 (Ch); [2012] STI 1373...................... 122 Inwards v Baker [1965] 2 QB 29 (CA)....................................................... 32, 55 Iqbal v Ahmed [2011] EWCA Civ 900; [2012] 1 FLR 31..................... 183, 187 James v Thomas [2007] EWCA Civ 1212; [2008] 1 FLR 1598........ 52–3, 81–2 Jelley v Iliffe [1981] Fam 128 (CA)................................ 154, 156, 159, 177, 189 Jennings, Re [1994] Ch 286 (CA)................................................................... 195 Jennings v Cairns [2003] EWCA Civ 1935; [2004] WTLR 361................... 231 Jennings v Rice [2001] WTLR 871 (Ch); [2002] EWCA Civ 159; [2003] 1 FCR 501................ 27, 37, 42, 56–7, 59–60, 62, 64–70, 72, 75, 115, 134, 160 Jones v Jones [2001] NICH 2............................................................................ 30 Jones v Kernott [2011] UKSC 53; [2011] 3 WLR 1121........................................ 28, 40, 73, 81–3, 85–6, 88, 101, 241–2 Jones v Watkins [1987] EWCA Civ J1126–4............................................... 55–6 Joram Developments v Sharratt [1979] 1 WLR 928 (HL).......................... 209 Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (HL)...... 128 Knowlden v Tehrani [2008] EWHC 54 (Ch).................................................. 80 Lamb v Bunce (1815) 4 M & S 275; (1815) 105 ER 836 (KB)....................... 121 Lambert v Lambert [2002] EWCA Civ 1685; [2003] Fam 103................ 184–5 Land (decd), Re [2006] EWHC 2069 (Ch); [2007] 1 WLR 1009............ 10, 198 Langton v Langton [1995] 2 FLR 890.................................... 221, 223, 233, 237

xvi  Table of Cases Laskar v Laskar [2008] EWCA Civ 347; [2008] 1 WLR 2695............... 87, 144 Layton v Martin [1986] 2 FLR 227 (Ch).......................................................... 42 Leach (decd), Re [1986] Ch 226............................................................. 190, 197 Leeder v Stevens [2005] EWCA Civ 50; (2005) 149 SJLB 112..................... 234 Liddle v Cree [2011] EWHC 3294 (Ch)......................................................... 217 Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113 (PC)................ 23, 57 Lindop v Agus [2009] EWHC 1795 (Ch); [2010] 1 FLR 631............... 156, 164 Lissimore v Downing [2003] EWHC B1 (Ch); [2003] 2 FLR 308....... 42–3, 59 Lloyds Bank Ltd v Bundy [1975] QB 326 (CA)........................................... 228 Lloyds Bank plc v Riggs [1992] EWCA Civ J1127-7................................... 195 Lloyds Bank plc v Rosset [1991] 1 AC 107 (HL)....................................... 81–3 MacDonald v Frost [2009] EWHC 2276 (Ch); [2009] WTLR 1815............................................................................... 42, 47, 51–2, 85 McKernan (decd), Re [2007] NICh 6............................................................. 199 Maddison v Alderson (1883) 8 App Cas 467 (HL)........................................ 26 Malone v Harrison [1979] 1 WLR 1353 (Fam)..................................... 161, 181 Matharu v Matharu [1994] 2 FLR 597 (CA)................................................... 41 Midland Bank Trust Co Ltd v Green (No 1); [1981] AC 513 (HL).............. 21 Miller v Miller [2005] EWHC 528 (Fam); [2005] 2 FLR 533....................... 185 Miller v Miller [2005] EWCA Civ 984; [2006] 1 FLR 151............................ 184 Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618................................................................ 18, 71, 176, 183–5, 192, 207 Milroy v Lord (1862) 4 De G F & J 264; (1862) 45 ER 1185 (QB)................. 76 Morley v Emaleh [2009] EWHC 1196 (Ch).................................................. 229 Morley v Loughnan [1893] 1 Ch 736.................................................... 222, 238 Morris v Morris [2008] EWCA Civ 257; [2008] Family Law 521.......... 81, 85 Mulholland v Kane [2009] NICh 9.................................................................. 37 Murphy v Rayner [2011] EWHC 1(Ch)................................. 26, 41, 47, 49, 52, 57, 71, 116, 166, 217 Myers v Myers [2004] EWHC 1944 (Fam); [2005] WTLR 851................... 192 National Westminster Bank v Morgan [1985] AC 686 (HL)...................... 224 Niersmans v Pesticcio [2004] EWCA Civ 372; [2004] WTLR 699................................................................................................. 226, 232, 235 Ottey v Grundy [2003] EWCA Civ 1176; [2003] WTLR 1253........................................................................................... 46–7, 58, 67, 70 Oxley v Hiscock [2004] EWCA Civ 546; [2005] Fam 211............... 81, 84, 241 P v G (Family Provision: Relevance of Divorce Provision) [2004] EWHC 2944 (Fam); [2006] 1 FLR 431....................................................... 182 Parker v Clarke [1960] 1 WLR 286 (Assizes)................................................. 26 Parker v Parker [2003] EWHC 1846 (Ch); [2003] NPC 94........................... 53 Pearce (decd), Re, [1998] 2 FLR 705 (CA)..................................................... 197 Penningron v Waine [2002] EWCA Civ 227; [2002] 1 WLR 2075................ 77 Perrins v Holland [2009] EWHC 1945 (Ch); [2009] WTLR 1387; [2010] EWCA Civ 840; [2011] Ch 270................................................ 146, 221



Table of Cases xvii

Pettitt v Pettitt [1970] AC 777 (HL)................................................................. 81 Pleming v Hampton [2004] EWCA Civ 446.................................................. 41 Plumley v Bishop [1991] 1 WLR 582 (CA)................................... 156–7, 160–1 Polly Peck International plc, (in administration) (No 2), Re [1998] 3 All ER 812 (CA).......................................................................................... 86 Powell v Benney [2007] EWCA Civ 1283; (2007) 51 SJLB 1598................................................... 55, 59, 62, 64, 69–70, 85–6, 109 R v A-G for England & Wales [2003] UKPC 22; [2003] EMLR 24............. 226 R v Somerset County Council, ex p Harcombe (1997) 96 LGR 444 (QB)...... 19 R (on the application of JM) v Isle of Wight Council [2011] EWHC 2911 (Admin); [2012] Eq LR 34.................................................................... 13 R (on the application of KM) v Cambridgeshire County Council [2012] UKSC 23; (2012) 162 NLJ 780........................................................... 13 R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33; [2011] PTSR 1266....................................... 13 R (on the application of W) v Birmingham City Council [2011] EWHC 1147 (Admin); [2011] Eq LR 721..................................................... 13 Radmacher v Granatino [2010] UKSC 42; [2011] 1 AC 534......................... 10 Ramsden v Dyson (1866) LR 1 HL 129........................................................... 38 Randall v Randall [2004] EWHC 2258 (Ch); [2005] WTLR 119......... 221, 228 Rees v Newbery [1998] 1 FLR 1041 (Ch)...................................................... 160 Rhodes, Re (1890) 44 Ch D 94 (CA).............................................................. 128 Riches v Hogben [1986] 1 Qd R 315................................................................ 41 Ross v Collins [1964] 1 WLR 425 (CA)......................................................... 209 Rowe v Vale of White Horse DC [2003] EWHC 388 (Admin); [2003] 1 Lloyd’s Rep 418........................................................................................ 125 Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44; [2002] 2 AC 773.......................................... 218, 220–2, 224, 226, 228–31, 234–5, 237 RP v RP [2006] EWHC 3409 (Fam); [2007] 1 FLR 2105............................... 243 RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14; [2010] 1 WLR 753........................................................... 127 S, Re [2010] EWHC 2405 (Fam); [2011] WTLR 449..................................... 217 Schaefer v Schuhmann [1972] AC 572 (PC)................................................... 26 Sharpe (A Bankrupt), Re [1980] 1 WLR 219 (Ch).......................................... 61 Shirt v Shirt [2010] EWHC 3820 (Ch)............................................. 37–8, 47, 87 Shirt v Shirt [2012] All ER (D) 212 (Mar) (CA).............................................. 47 Sillett v Meek [2007] EWHC 1169 (Ch); [2009] WTLR 1065.................. 228–9 Sledmore v Dalby (1996) 72 P & CR 196 (CA)......................................... 58, 90 Smith v Cooper [2010] EWCA Civ 722; [2010] 2 FLR 1521........ 223, 230, 234 Smith v Kay [1859] 7 HLC............................................................................. 219 Special Trustees for Great Ormond Street Hospital for Children v Rushin, Re Morris (decd) [2001] WTLR 1137 (Ch)........................... 14, 228 Stack v Dowden [2007] UKHL 17; [2007] 2 AC 432......................... 28, 40, 73, 80–8, 101, 241

xviii  Table of Cases Steadman v Steadman [1976] AC 536 (HL)................................................... 27 Strover v Strover [2005] EWHC 860 (Ch); [2005] WTLR 1245.................... 33 Suggitt v Suggitt [2011] EWHC 903 (Ch); [2011] 2 FLR 875.................. 40, 47 Taylor v Dickens [1998] 1 FLR 806 (Ch)............................................. 38, 44, 57 Taylor v Laird (1856) 25 LJ Exch 329; (1856) 156 ER 1203.......................... 123 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 (Ch).......................................................................................... 34–5, 38 Thompson v Foy [2009] EWHC 1076 (Ch); [2010] 1 P & CR 16................................................................................. 38, 40, 97, 229 Thorner v Major [2007] EWHC 2422 (Ch); [2008] WTLR 155............... 39, 66 Thorner v Major [2008] EWCA Civ 732; [2008] 2 FCR 435...................... 38–9 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776................. 31, 33–4, 36, 38–42, 44–8, 56, 60, 62, 66, 75, 77–8, 81, 86–7, 89, 95–6, 114, 124, 134, 127 Thornley (decd), Re [1969] 1 WLR 1037 (CA)......................................... 185–6 Tufton v Sperni [1952] 2 TLR 516 (CA)........................................................ 231 Turkey v Awadh [2005] EWCA Civ 382; [2005] 2 FCR 7............................ 230 Vale v Armstrong [2004] EWHC 1160 (Ch); [2004] WTLR 1471............... 235 Wachtel v Wachtel [1973] Fam 72 (CA)........................................................ 184 Wakeham v Mackenzie [1968] 1 WLR 1175 (Ch).......................................... 79 Walsh v Singh [2009] EWHC 3219 (Ch); [2010] 1 FLR 1658.......... 128–9, 132 Walters v Smee [2008] EWHC 2029 (Ch); [2009] WTLR 521............... 54, 123 Walton v Walton [1994] EWCA Civ J0414–1, 10............................................ 75 Watson (decd), Re [1999] 1 FLR 878 (Ch) 884.......................... 162–3, 166, 208 Watson v Goldsbrough [1986] 1 EGLR 265 (CA).......................................... 41 Watts v Story [1983] EWCA Civ J0714–5, 8............................................... 53–6 Wayling v Jones [1995] 2 FLR 1029 (CA)....................................................... 50 Welch, Re [1990] 3 NZLR 1 (PC)..................91, 93, 99, 107–9, 113–5, 117, 200 White v White [2001] AC 596........................................................................ 176 Whittaker v Kinnear [2011] EWHC 1479 (QB); [2011] 2 P & CR DG20......................................................................................................... 36, 43 Wilkinson (decd), Re [1978] Fam 22..................................................... 153, 155 Wilmott v Barber (1880) 15 Ch D 96............................................................... 35 Witkowska v Kaminski [2006] EWHC 1940 (Ch); [2007] 1 FLR 1547...... 188 Yaxley v Gotts [2000] Ch 162 (CA)...................................................... 76, 78, 85 Australia Badman v Drake [2008] NSWSC 1366.................................................. 219, 225 Barlevy v Nadolski [2011] NSWSC 129................................................ 146, 169 Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281..................... 46 Blackley v Proctor [2001] NSWSC 537................................................. 161, 169 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124....................................... 199



Table of Cases xix

Bogan v Macorig [2004] NSWSC 993........................................................... 171 Burgess v Moss [2010] NSWCA 139; [2010] ALMD 6473...................... 212–3 Christodoulou v Christodoulou [2009] VSC 583........................................ 229 Collier v Morlend Finance Corporation [1989] ASC s 55–716.................. 235 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 (HC)......... 68 Dable v Peisley [2009] NSWSC 772.......................................................... 26, 42 Darmanin v Cowan [2010] NSWSC 1118..................................................... 235 Davis v Fordham [2008] NSWSC 182........................................................... 170 Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483....................................................................................................... 62, 69, 89 Donis v Donis [2007] VSCA 89; (2007) 19 VR 577................................... 54, 68 Dridi v Filmore [2001] NSWSC 319.............................................................. 171 Estate of Bruinsma, Menczer v Menczer [2009] NSWSC 1466................... 51 Evans v Evans [2011] NSWCA 92............................................................. 75, 89 Federov v Yakimov, unreported, New South Wales Supreme Court, 5 December 1991............................................................................. 236 Forsyth v Sinclair [2010] VSCA 147.............................................................. 152 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101.................. 68–9, 88 Goodman v Windeyer (1980) 144 CLR 490.......................................... 186, 199 Gors v Henderson [1998] WASC 273.............................................................. 27 Hatte, Re [1943] St R Qd 1.............................................................................. 192 Hatton v Hatton [2012] NSWSC 182............................................................ 196 Hayes v Marquis [2008] NSWCA 10; [2008] ALMD 5421............ 169–72, 213 Hewitt v Gardner [2009] NSWSC 1107............................ 217, 229, 233–4, 236 Hillston v Bar-Mordecai [2003] NSWSC 89................................................. 226 Hobsons Bay City Council v Gibbon & Ors [2011] VSC 140; (2011) 181 LGERA 253.............................................................................................. 89 Hughes v Charlton [2008] NSWSC 467............................................ 172–3, 202 Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134..................................................... 195 Hunter v Hunter (1987) 8 NSWLR 573........................................................ 199 Hyatt v Covalea [2011] VSC 334................................................................... 146 Janson v Janson [2007] NSWSC 1344........................................... 232, 235, 237 Johnson v Johnson [2009] NSWSC 503; [2010] ALMD 249........................ 227 Johnson v Smith [2010] NSWCA 306.................................. 217, 226–7, 229–30 Jurd v Public Trustee [2001] NSWSC 632.................................................... 201 Lai See Law by her Tutor the Protective Commissioner of New South Wales v Yan Mo [2009] NSWSC 639..................................................... 234–5 Lajcarova v Todorov [2011] NSWSC 522..................................................... 203 Lee v Hearn [2002] VSC 208.......................................................................... 152 Lee v Hearn [2005] VSCA 127; [2006] ALMD 5714.................................... 152 Mao v Peddley [2001] NSWSC 254............................................................... 165 Marsh-Johnson v Hillcoat [2008] NSWSC 1337.......................................... 172 Montague v Montague [2002] NSWSC 328................................................. 186

xx  Table of Cases Morwood v Dalgleish [2007] NSWSC 32..................................................... 168 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583........................ 241 Nattrass v Nattrass [1999] WASC 77............................................................ 232 Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538................................ 144 Newnham v Tarbert [1990] NSWCA 138 (unreported)............................. 188 O’Shaughnessy v Mantle (1986) 7 NSWLR 142.......................................... 169 Palagiano v Mankarios [2011] NSWSC 61........................... 46, 48, 146, 202–3 Parente v Parente (1982) 29 SASR 310.......................................................... 151 Pearson v Williams [2001] VSC 509................................................................ 53 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24......................... 192 Przewoznik v Scott [2005] NSWSC 74......................................................... 165 Richardson v Kidd [2002] NSWSC 306; [2007] ALMD 2205................. 170–1 Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153; [2008] ALMD 1901; [2009] NSWCA 216; [2009] ALMD 6187........................... 236 Russell, Re [1970] QWN 22............................................................................ 141 Saliba v Tarmo [2009] NSWSC 581....................................................... 45–6, 88 Scheps v Cobb, Estate of Dagobert Scheps (decd) [2005] NSWSC 455..... 26 Sinnott, Re [1948] VLR 279............................................................................. 199 Smith v Daniels [2010] NSWSC 604............................................................. 173 Stephens v Perpetual Trustee Company Ltd [2009] NSWSC 1078; [2011] ALMD 490......................................................................................... 157 Stivactas v Michaletos (No 2) [1994] ANZ Conv R 252 (NSWSC, 31 August 1993)........................................................................................... 228 Sturits v Nicholls [2011] NSWSC 599........................................................... 186 Sullivan v Sullivan [2006] NSWCA 312; [2008] ALMD 312.............. 44, 68–9 Tadrous v Tadrous [2012] NSWCA 16............................................................ 89 Terry, In the Estate of (1980) 25 SASR 500.................................................... 151 Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137................................................................................................ 173 Tredrea v Bailey [2005] NSWSC 108............................................................. 227 Trevenar v Ussfeller [2005] NSWSC 582...................................................... 232 Unger v Sanchez [2009] VSC 541.......................................................... 152, 201 Union Fidelity v Gibson [1971] VR 573........................................................ 227 Urane v Whipper [2001] NSWSC 796; [2002] NSW Conv R 55-992......... 223 Vukic v Luca Grbin, Estate of Zvonko Grbin [2006] NSWSC 41........ 39, 198 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.................................................................................................... 34 Weeks v Hrubala [2008] NSWSC 162................................... 44, 46, 51, 69, 160 Western v Male [2011] SASC 75.................................................................... 218 Winefield v Clarke [2008] NSWSC 882........................................................ 234 Woodland v Rodriguez [2004] NSWSC 1167.............................. 147, 168, 173



Table of Cases xxi

Canada Brennan v Gardy Estate [2011] BCSC 1337; (2011) 207 ACWS (3d) 371............................................................................................................. 130–2 Clarkson v McCrossen [1995] CanLII 737 (BC CA); (1995) 122 DLR (4th) 239.......................................................................................... 127, 129–33 Easingwood v Cockroft [2011] BCSC 1154; [2011] BCWLD 7778............. 132 Garland v Consumers’ Gas Co [2004] SCC 25; [2004] 1 SCR 629............. 130 Gensig v Hutchings [1996] CanLII 2192 (BC CA); (1996) 77 BCAC 305................................................................................................ 130 Gould v Royal Trust Corp of Canada [2009] BCSC 1528; [2010] BCWLD 608............................................................................................ 24, 131 Kerr v Baranow [2011] SCC 10; [2011] 1 SCR 269......................... 123, 129–34 Pecore v Pecore [2007] SCC 17; [2007] 1 SCR 795....................................... 144 Peel (Regional Municipality) v Canada [1992] CanLII 21 (SCC); [1992] 3 SCR 762.......................................................................................... 130 Peter v Beblow [1993] 1 SCR 980; [1993] CanLII 126 (SCC).............. 130, 132 Rathwell v Rathwell [1978] CanLII 3 (SCC); [1978] 2 SCR 436................. 130 Rubin v Gendemann [2012] ABCA 38............................................................ 20 Valerio v Silveira [2011] BCSC 1055; [2012] BCWLD 396.................. 130, 133 Wilson v Fotsch [2010] BCCA 226; [2010] BCWLD 4335........................... 133 Europe Burden v United Kingdom App no 13378/05 [2007] 1 FCR 69; [2008] 2 FLR 787 (Grand Chamber of the European Court of Human Rights)........................................................................................ Preface, 210–1 Coleman v Attridge Law [2008] All ER (EC) 1105, Case C-303/06 (ECJ).................................................................................................................. 9 Jersey Maçon v Quérée [2001] JLR 80........................................................................ 58 New Zealand Allender v Gordon [1959] NZLR 1026 (CA).......................................... 94, 106 Archer, Re [1990] 3 NZLR 737 (HC)............................................................. 106 Beazer (decd), Re Armstrong v McKay [2001] NZFLR 557 (HC)..............................................................................98, 100, 107, 110, 115–6 Brusewitz v Brown [1923] NZLR 1106 (SC)................................................ 220

xxii  Table of Cases Byrne v Bishop [2001] NZCA 309; [2001] 3 NZLR 780............................................................97–100, 103, 106, 108–9, 114–5, 117 Cain v Nyhon [2007] NZFLR 1055 (FC)........................... 95, 98–9, 107–8, 116 Chapman v HP [2009] NZHC 732; [2010] NZFLR 855.............................. 164 Collier-Cambus (decd), Re [1994] NZFLR 520 (HC)............................ 92, 112 Cotton v Griffin [2001] BCL 495 (HC).......................................................... 100 Coyne v Haines [2005] NZFLR 678 (FC)................................................ 97, 108 Edwards v New Zealand Insurance Co Ltd [1971] NZLR 113 (HC)......... 96 Fagan (decd), Re, Walker v Fagan [1999] NZFLR 222 (HC)................ 98, 107 Fearon v The Public Trustee [2008] NZHC 1835......................................... 194 Gillies v Keogh [1989] 2 NZLR 327..................................................... 40, 49, 87 Hamilton v Hamilton [2003] NZFLR 883 (HC)...................... 94, 98, 106, 116 Hanlon, Re [2000] NZFLR 227 (HC)................................................93, 111, 115 Harrison (decd), Re, Thomson v Harrison [1962] NZLR 6....................... 193 Hawkins v Public Trustee [1960] NZLR 305 (SC)....................................... 107 Hayward, Re [1989] 1 NZLR 759 (HC)........................................................ 116 Heathwaite v NZ Insurance Co Ltd [1951] NZLR 6 (SC)............................ 96 Henry v Henry [2007] NZCA 42; [2007] NZFLR 640................................. 193 Hogan v Commercial Factors Ltd [2006] 3 NZLR 618 (CA)..................... 218 Holland v Knapp [2004] NZFLR 1135.......................................................... 109 Horsfield v Giltrap [2001] NZCA 179; (2001) 20 FRNZ 404...................... 164 Humphrey v New Zealand Guardian Trust [2004] NZFLR 179 (HC)....................................................................................................... 94–5, 99 JIM, the Estate of, Re, AES v New Zealand Public Trust [2010] NZFLR 1085................................................................................................. 112 Jones v Public Trustee [1962] NZLR 363 (CA).......................................98, 111 Kirby v Sims [2011] NZHC 935................................................................. 193–4 Kite v May [2001] NZFLR 514 (HC)....................................91, 106, 110–1, 116 Lowe, Re [1991] 1 NZLR 98 (HC)................................................................. 113 McCormack v Foley [1983] NZLR 57 (CA)..............................91, 112, 119–20 McMillan v New Zealand Insurance Co Ltd [1956] NZLR 353 (SC)........111 Nealon v Public Trustee [1949] NZLR 148 (CA)..................................... 91, 93 Parata v McGowan [1994] NZFLR 937 (HC)................................................. 91 Powell v Public Trustee [2002] NZCA 276; [2003] 1 NZLR 381................................................................................97, 106, 108, 110, 115–6 Public Trustee v Bick [1973] 1 NZLR 301 (CA)............................................. 93 PZ v JC [2006] NZFLR 97 (HC)....................................................................... 99 Rennie v Hamilton [2004] NZFLR 270 (HC)................................................. 94 Rennie v Hamilton [2005] NZCA 202....................................................... 92, 94 Samuels v Atkinson [2009] NZCA 556; [2010] NZFLR 980............... 108, 115 Saunders v New Zealand Guardian Trust Company Ltd [2010] NZHC 1417...................................................................................... 92, 97, 108 Scragg v Scott [2006] NZFLR 1076; [2006] FRNZ 942................................ 164 Sellars (decd), Re, Bailey v Public Trustee, Re [1996] NZFLR 971 (DC).... 108



Table of Cases xxiii

Sexton v Titiro Trustee Co Ltd [2008] NZHC 715....................................... 218 Thwaites v Keruse (1993) 11 FRNZ 19 (CA)................................................ 108 Tombs v Macassey (CA174/02, 18 June 2003); [2003] New Zealand Law Journal 325....................................................................................... 100–1 Townley, Re [1982] 2 NZLR 87 (CA)............................................................. 113 Tucker v Guardian Trust [1961] NZLR 773 (SC)......................................... 105 Walker, Re, Walker v Jordan [1998] NZFLR 726......................................... 194 Webb v Smith [2011] NZHC 1512........................................................... 99–100 Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479......................... 194 Wilson v Wilson [2007] NZFLR 555 (FC)..................................... 93, 95, 106–7 Wischnewsky v Public Trustee [1995] NZFLR 166 (DC)............................. 94 Wright v Holland [1995] NZFLR 951 (HC)................................................. 114 Singapore Joseph Mathew v Singh Chiranjeev [2010] 1 SLR 338 (CA)........................ 27

Table of Legislation United Kingdom Administration of Estates Act 1925   s 46................................................................................................................. 178   s 46(1)(vi)...................................................................................................... 179 Carers and Disabled Children Act 2000........................................................... 8 Carers (Equal Opportunities) Act 2004............................................................ 8 Carers (Recognition and Services) Act 1995................................................ 4, 8   s 1(1)(b)............................................................................................................. 5 Civil Partnership Act 2004, Sch 4(2), para 15.............................................. 150 Disability Discrimination Act 1995................................................................... 9 Employment Rights Act 1996, s 80F................................................................. 8 Equality Act 2010   s 13..................................................................................................................... 8   s 199............................................................................................................... 144 Family Provision Act 1966............................................................................. 150 Forfeiture Act 1982   s 1(1).............................................................................................................. 198   s 3................................................................................................................... 198 Health and Social Care Act 2001..................................................................... 10   s 57................................................................................................................... 10 Health and Social Services and Social Security Adjudications Act 1983   Pt VII............................................................................................................... 19   s 22................................................................................................................... 19 Housing (Scotland) Act 2001   s 22................................................................................................................. 209   Sch 3.............................................................................................................. 209 Human Rights Act 1998, s 3........................................................................... 198 Inheritance (Family Provision) Act 1938.............................................. 150, 190 Inheritance (Provision for Family and Dependants) Act 1975...... 72, 136–7, 146–8, 150–4, 156, 160–3, 165–8, 173–81, 183, 185–7, 189, 192, 195–200, 202–5, 242   s 1(1)(a)................................................................................................. 147, 181   s 1(1)(b)................................................................................................. 148, 187   s 1(1)(ba)............................................................................... 148, 162, 167, 204   s 1(1)(c)–(d)................................................................................................... 148   s 1(1)(e).............................................. 148, 152–3, 155, 159, 174, 189, 199, 203   s 1(1A)............................................................................... 137, 148, 162–3, 167

xxvi  Table of Legislation   s 1(1B).................................................................................... 137, 148, 162, 167   s 1(2)(b)......................................................................................................... 176   s 1(3)...................................................................................................... 153, 156   s 2(a)–(aa)..................................................................................................... 181   s 2(1).............................................................................................................. 175   s 3................................................................................................................... 188   s 3(g).............................................................................................................. 189   s 3(1)...................................................................................................... 138, 180   s 3(2)...................................................................................................... 182, 185   s 3(3).............................................................................................................. 200   s 3(4).............................................................................................................. 189   s 15................................................................................................................. 187   s 25(4)–(4A).................................................................................................. 181 Inheritance Tax Act 1984, s 18........................................................................ 209 Intestates’ Estates Act 1952............................................................................ 150 Land Registration Act 2002, s 116(a)............................................................... 61 Law of Property Act 1925   s 52............................................................................................................. 32, 76   s 52(1).............................................................................................................. 77   s 53............................................................................................................. 32, 76   s 53(1)(a)–(c)................................................................................................... 77   s 53(2).............................................................................................................. 77   s 54............................................................................................................. 32, 76 Law of Property (Miscellaneous Provisions) Act 1989   s 2............................................................................................... 27, 43, 65, 76–8   s 5(3)–(4)(a)..................................................................................................... 27 Law Reform (Succession) Act 1995....................................................... 150, 162 Matrimonial Causes Act 1973................................................................ 181, 206   s 12(a)–(b)..................................................................................................... 210   s 25................................................................................................... 73, 183, 207   s 25(2)(f)........................................................................................................ 207   s 25(2)(f)–(g)................................................................................................. 184   s 25A(1)......................................................................................................... 187 Matrimonial Causes (Property and Maintenance) Act 1958..................... 150 National Assistance Act 1948........................................................................ 149   s 22................................................................................................................... 19 Personal Care at Home Act 2010..................................................................... 19 Statute of Frauds 1677................................................................................ 26, 79 Wills Act 1837........................................................................................ 76, 78–80   s 9..................................................................................................................... 78   s 18B.............................................................................................................. 178 Work and Families Act 2006........................................................................ 8, 11   s 12..................................................................................................................... 8



Table of Legislation xxvii

Statutory Instruments Community Care Services for Carers and Children’s Services (Direct Payments) (England) Regulations (SI 2009/1887)   r 11(1).............................................................................................................. 11   r 11(2).............................................................................................................. 11   r 12(2)–(3)........................................................................................................ 11 Family Provision (Intestate Succession) Order 2009 (SI 2009/135)......... 178 Flexible Working (Eligibility, Complaints and Remedies) Regulations (SI 2002/3236), r 3B..................................................................................... 8 Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations (SI 2006/3314), r 5................................................................. 8 Inheritance (Provision for Family and Dependants) (Northern Ireland) Order (SI 1979/924) (NI 8)..................................................................... 196 National Assistance (Assessment of Resources) Regulations (SI 1992/2977)................................................................................................... 18–9 Australia Administration and Probate Act 1935 (Tas)   s 44................................................................................................................. 170   s 44(9)(b)....................................................................................................... 179 Administration and Probate Act 1958 (Vic)................................................. 152 Commonwealth Powers (De facto Relationships) Act 2003 (NSW)........ 212 Domestic Relationships Act 1994 (ACT)...................................................... 211   s 3................................................................................................................... 211 Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008.................................................................................. 211–2 Family Provision Act 1982 (NSW)................................................ 168, 172, 201   s 6(1)(a)(ii).................................................................................................... 167 Inheritance (Family Provision) Act 1972 (South Australia), s 6(i)–(j)...... 151 Interpretation Act 1987 (NSW)   s 21C.............................................................................................................. 164   s 21C(1)(a)..................................................................................................... 164   s 21C(2)(a)..................................................................................................... 165   s 21C(3)......................................................................................................... 165   s 21C(3)(b).................................................................................................... 165   s 21C(3)(c)..................................................................................................... 164   s 21C(3)(i)..................................................................................................... 164 Property (Relationships) Act 1984 (NSW)................................................... 212   Pt 3................................................................................................................. 212     divs 2–4..................................................................................................... 212   s 5(1).............................................................................................................. 212

xxviii  Table of Legislation   s 5(2).............................................................................................................. 168   ss 17–18......................................................................................................... 212   s 20(1)............................................................................................................ 212   s 20(1)(b)....................................................................................................... 212 Property (Relationships) Legislation Amendment Act 1999 (NSW)............................................................................................... 167, 212 Relationships Act 2003 (Tas)...................................................................... 213–4   Pt 5................................................................................................................. 214   s 2................................................................................................................... 214   s 5........................................................................................................... 170, 213   s 5(4).............................................................................................................. 214   s 5(5).............................................................................................................. 213   s 6................................................................................................................... 214   s 11................................................................................................................. 214   s 11(2)(a)........................................................................................................ 214   s 11(3)............................................................................................................ 214   s 11(3)(a)–(b)................................................................................................. 214   s 14................................................................................................................. 172   s 36(1)............................................................................................................ 214   s 37(1)–(3)..................................................................................................... 214 Relationships Act 2008 (Vic).......................................................................... 215   s 39................................................................................................................. 215   s 41................................................................................................................. 215 Relationships Amendment (Caring Relationships) Act 2009 (Vic)..... 211, 215 Relationships Register Act 2010 (NSW)............................................... 172, 215 Succession Act 2006 (NSW)....................................................... 167–9, 172, 175   s 3(3).............................................................................................................. 168   s 57................................................................................................................. 164   s 57(b)............................................................................................................ 166   s 57(e).................................................................................................... 161, 200   s 59(1)(b)....................................................................................................... 169   s 59(1)(c)................................................................................................ 177, 182   s 60(1)(a)....................................................................................................... 169   s 60(j)............................................................................................................. 141   ss 104–105..................................................................................................... 179 Succession Amendment (Family Provision) Act 2008 (NSW).......... 168, 201 Germany Bürgerliches Gesetzbuch (Civil Code)........................................................... 25



Table of Legislation xxix

Ireland Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010................................................................................................................. 208   s 172(1).......................................................................................................... 208   s 172(2).......................................................................................................... 208   s 172(2)(g)..................................................................................................... 208   s 172(3).......................................................................................................... 208 New Zealand Family Protection Act 1955.....................................................117, 119, 193, 200   s 4(1)...................................................................................................... 177, 193   s 13................................................................................................................... 10 Family Provision Act 1982............................................................................. 202 Law Reform Act 1944, s 3................................................................................. 91 Law Reform (Testamentary Promises) Act 1949............................................... 28, 91–101, 105–9, 112, 114, 116–7, 119–20, 240   s 3(1).............................................................................................................. 110   s 2..................................................................................................................... 93   s 3............................................................................................................. 92, 105   s 3(1).................................................................................... 92–4, 100, 105, 112   s 3(2)...................................................................................................... 92, 97–8   s 3(2)(b)........................................................................................................... 94   s 3(3)........................................................................................................ 92, 113   s 3(3)(a)–(b)................................................................................................... 113   s 3(4)........................................................................................................ 92, 113   s 3(5)................................................................................................................ 92   s 3(6).............................................................................................................. 116   s 3(8).......................................................................................................... 92, 96 Law Reform (Testamentary Promises) Amendment Act 1961.................. 112 Property (Relationships) Act 1976........................................................ 109, 164 Testator’s Family Maintenance Act 1900............................................... 149–50 Wills Act 2007.................................................................................................... 78 International European Convention on Human Rights    Art 14....................................................................................................... 209–10   Protocol 1     Art 1............................................................................................. 198, 209–10

1 Introduction

T

1.1  THE CONCERN OF THIS BOOK

HE WORLD’S POPULATION is ageing.1 In the United Kingdom, for example, 23 per cent of the population is projected to be aged 65 or older by 2035, while only 18 per cent will be under 16.2 One of the most important questions in social policy is therefore how to defuse this ‘ticking demographic timebomb’3 by allocating the burdens of funding and providing care for the increasing number of people who will require it in the decades to come.4 Of course, it must not be forgotten that some younger people also require care as a result of illness or disability. This book aims to examine an aspect of the overall conundrum of care provision, namely the legal position of the informal carer as regards support and recognition.5 The scope of the book is largely confined to the realm of private law, that is situations where the relevant litigation would be between individuals or other private parties such that the state would not be directly involved. Specifically, the book addresses the availability 1   See, eg A Börsch-Supan, K Hank and H Jürges, ‘A New Comprehensive and International View on Ageing: Introducing the “Survey of Health, Ageing and Retirement in Europe”’ in PA Kemp, K Van den Bosch and L Smith (eds), Social Protection in an Ageing World (Antwerp, Intersentia, 2008). 2   Office for National Statistics, ‘Older People’s Day 2011’ (Office for National Statistics, 2011) 1. 3  Local Government Association, ‘LGA Response – “Which?” Investigation into Home Care’ (16 March 2012) www.local.gov.uk/web/guest/media-releases/-/journal_content/ 56/10171/33375393/NEWS-TEMPLATE, quoting the chairman of the Local Government Association’s Community Wellbeing Board, Councillor David Rogers. 4  See, eg HM Government, Building the National Care Service (Cm 7854, 2010); Commission on Funding of Care and Support, Fairer Care Funding (Commission on Funding of Care and Support, 2011). Nevertheless, account should be taken of Herring’s assertion that more elderly people are involved in the provision of care than in receiving it: J Herring, Older People in Law and Society (Oxford, Oxford University Press, 2009) 94. See Princess Royal Trust for Carers, ‘Always On Call, Always Concerned: A Survey of the Experiences of Older Carers’ (Princess Royal Trust for Carers, 2011) for a discussion of the particular difficulties encountered by older carers. 5   For a discussion of the meaning of ‘carer’, see section 1.2.1 below. Some carers object to the use of the word ‘informal’ to characterise their role, since they see nothing informal about their level of commitment (L Clements, Carers and their Rights: The Law relating to Carers, 4th edn (London, Carers UK, 2011) [2.2]), but here ‘informal’ is used in the sense that the arrangement lacks a formal contract.

2  Introduction and propriety of private law remedies for informal carers. This is distinct from the admittedly vital question of state provision for such carers.6 The focus of the book is upon English law, although a comparative common law approach is incorporated in spite of the perceived difficulties with comparative analysis in some of the fields under discussion.7 The core legal categories explored are property and family property, testamentary promise enforcement, unjust enrichment, succession and undue influence.8 The book largely deals with two main scenarios.9 The first is where a carer receives some indication from the person for whom he cares10 that his care will be rewarded in some way, and the reward is not forthcoming. The second considers whether a remedy should be available in the absence of such an indication. This introductory chapter sets out the background to the topic, before the subsequent chapters undertake a legal analysis. Section 1.2 begins by examining the extent of informal care and setting out key definitions that are used throughout the book. The normative issues and social policy considerations surrounding care and carers are then examined, before the analysis of private law remedies (as distinct from state provision) is justified. Section 1.3 indicates some of the major questions to be addressed, while section 1.4 outlines the substantive legal areas that form the subject matter of the book. This chapter concludes with a summary of the work’s structure. 1.2  SOCIAL POLICY CONTEXT AND NORMATIVE CONSIDERATIONS

1.2.1  Statistics and Definitions Globally, informal care provided in the home is said to be the most important source of care.11 The picture in England and Wales reflects this general position, since the Commission on Funding of Care and Support admitted that ‘[c]arers are the foundation of the care and support system, and will 6   For a comprehensive overview of the public law relating to carers, see Clements, Carers and their Rights: The Law relating to Carers ibid. 7   See, eg D Bradley, ‘Family Law’ in JM Smits (ed), Elgar Encyclopedia of Comparative Law (Cheltenham, Edward Elgar, 2006). 8   See section 1.4.1 below, where contract law is also discussed and excluded from the inquiry (except in section 2.4.1 below, where it is compared with proprietary estoppel) because those who provide care under a contract are not ‘informal carers’. Another potential private law remedy relevant to a carer is a right to share in damages available to the victim of a tortiously-inflicted injury. Such claims, discussed in S Degeling, Restitutionary Rights to Share in Damages: Carers’ Claims (Cambridge, Cambridge University Press, 2003), are not specifically addressed in this book because they arise only in highly specific circumstances. 9   For a more detailed explanation, see sections 1.3.1 and 1.3.2 below. 10   This latter person is termed the ‘care recipient’: see section 1.2.1 below. 11  Organisation for Economic Co-operation and Development, Long-term Care for Older People (Paris, OECD Publishing, 2005) 15.



1.2  Social Policy Context 3

continue to be so in the future’.12 Similarly, the Government has said that ‘carers embody the spirit of the Big Society’,13 which has been described as ‘[a] society in which power and responsibility have shifted: one in which . . . individuals and communities have more aspiration, power and capacity to take decisions and solve problems themselves, and where all of us take greater responsibility for ourselves, our communities and one another’.14 Some models of support for informal carers are considered in this section. It is necessary to begin, however, by defining some important terms that will be used throughout the book. Inevitably, judges deciding private law cases are unlikely to be concerned with the precise meaning of terms such as ‘care’ or ‘carer’ unless they are applying a specific statutory scheme such as those existing in some Australian states and territories.15 Nevertheless, the definitions are crucially important in establishing the scope of the present inquiry even if the matter is a source of considerable difficulty.16 It is convenient to adopt the previous UK Government’s definition of ‘carer’, which states that: A carer spends a significant proportion of their life providing unpaid support to family or potentially friends. This could be caring for a relative, partner or friend who is ill, frail, disabled or has mental health or substance misuse problems.17

The ‘support’ relevant to this book will usually be ‘domestic’ support,18 although it is difficult to draw a definitive distinction between domestic and commercial cases.19 Official definitions are not treated as including parents caring for able-bodied children,20 and on that basis the 2001 Census revealed that there were around 5.2 million carers in England and Wales.21 Moreover, the representative organisation Carers UK estimates that 60 per cent of people will become a carer at some point in their lives.22 Those who provide care services under a formal contract are also excluded from official definitions of ‘carer’.23 These individuals are known   Commission on Funding of Care and Support, Fairer Care Funding (n 4) 51.   Department of Health, Recognised, Valued and Supported: Next Steps for the Carers Strategy (Department of Health, 2010) 3. 14   AVECO, ‘Powerful People, Responsible Society: The Report of the Commission on Big Society’ (London, AVECO, 2011) [1.4]. 15   These are considered in chs 5 and 6. 16   See, eg J Herring, ‘Caregivers in Medical Law and Ethics’ (2008) 25 Journal of Contemporary Health Law and Policy 1, 2–3. 17  Department of Health, Carers at the Heart of 21st‑Century Families and Communities: ‘A Caring System on your Side. A Life of your Own’ (Department of Health, 2008) 19. 18   See further section 5.3.4.3 below on the meaning of ‘domestic support and personal care’ for the purposes of an eligible ‘close personal relationship’ in New South Wales. 19   See, eg sections 2.2.1.6 and 2.2.4.4 below. 20   cf J Herring, ‘Where are the Carers in Healthcare Law and Ethics?’ (2007) 27 Legal Studies 51, 52. 21   Office for National Statistics, ‘Focus on Health’ (Office for National Statistics, 2004) 10. 22   Carers UK, ‘Facts about Carers’ (London, Carers UK, 2009) 7. 23  See, eg Directgov, ‘Top Tips for Carers’ www.direct.gov.uk/en/CaringForSomeone/ CaringAndSupportServices/DG_10016779. 12 13

4  Introduction in the social science and policy literature as ‘care workers’ and, as explained in section 1.4.1, they are largely outside the scope of this book. Nevertheless, it has been noted that mechanisms such as Direct Payments, discussed in section 1.2.2.2 below, cause carers to resemble care workers,24 with both positive and negative consequences.25 Moreover, the Law Commission has expressed doubt over the cogency of the distinction between carer and care worker.26 Their Consultation Paper recommended that a person should not be excluded from the definition of ‘carer’ for the purposes of the various assessment duties imposed upon local authorities27 where he was previously unpaid and is now paid using Direct Payments, where he is paid for only some of the care provided or ‘where the local authority believes the caring relationship is not principally a commercial one’.28 While this proposal was to some extent diluted in the final Report through the recommendation of a discretionary approach,29 the difficulties in drawing the distinction between ‘carer’ and ‘care worker’ in some scenarios remain. The person for whom the carer provides care is referred to as the ‘care recipient’ throughout the book. It should be assumed that the care recipient is an adult unless otherwise stated.30 For ease of expression, the book uses a paradigm of a male carer or applicant and a female care recipient (who may or may not be alive at the time of a private law claim).31 Another individual with whom the book is periodically concerned is the ‘pure’ carer. A ‘pure’ carer is one who is not a close relative of, or in a sexual relationship with, the care recipient. An important question, addressed at various points in the book, is whether ‘pure’ carers are or should be treated differently compared to other individuals for the purposes of a private law claim, since it could be argued that family members owe a greater obligation to provide care on an unremunerated basis.32 It is useful to indicate the amount of care that would have to be provided before a carer is brought within the parameters of the present discussion. Under the Carers (Recognition and Services) Act 1995, a carer must provide, or intend to provide, ‘a substantial amount of care on a 24   C Ungerson, ‘Whose Empowerment and Independence? A Cross-National Perspective on “Cash for Care” Schemes’ (2004) 24 Ageing and Society 189. 25  See, eg E Grootegoed, T Knijn and B Da Roit, ‘Relatives as Paid Care-Givers: How Family Carers Experience Payments for Care’ (2010) 30 Ageing and Society 467. 26   Law Commission, Adult Social Care: A Consultation Paper (Law Com CP No 192, 2010) [5.30]–[5.36]. 27   See section 1.2.2.2 below. 28   Law Commission, Adult Social Care: A Consultation Paper (n 26) 47. 29   Law Commission, Adult Social Care (Law Com 326, 2011) [7.34]–[7.41]. 30   The particular issues that arise where a minor child cares for a parent or other relative are not specifically considered in this book. See, eg G Schofield and J Walsh, ‘Young Carers – or Children in Need of Care? Decision Making for Children of Parents with Mental Health Problems’ (2010) 22 Child and Family Law Quarterly 223. 31   No substantive comment should be inferred from this choice. 32   See, eg section 5.3.1.1 below.



1.2  Social Policy Context 5

regular basis’ before he can request an assessment of his ability to provide that care.33 This concept is in itself open to interpretation, and indeed the Law Commission recently recommended its removal.34 Nevertheless, ideas of substance and regularity are of assistance in distinguishing true carers from those who provide occasional support in the context of an ordinary social relationship, even if it is accepted that care of some kind is ubiquitous within such relationships.35 The definitions discussed in this section inevitably vary during the course of the book, and are context-dependent. Even so, it is hoped that a general definition of ‘carer’ aids the reader in understanding the subject matter of the book. 1.2.2  State Support for Carers At the outset of a book on private law, it is necessary to address the argument that support for informal carers should be the concern of the welfare state and need not involve contributions from the property of private individuals other than through taxation, or perhaps a state-controlled system facilitating wider use of formal care.36 This subsection discusses such arguments and the extent to which they have been acted upon. The use of private law to support carers must, in turn, be justified. That is the aim of section 1.2.3. 1.2.2.1  Normative Arguments relating to State Support for Carers Many of the normative arguments on state support for carers in general are contributed by scholars on the ‘ethic of care’37 and other feminist writers. Those who argue in favour of an ‘ethic of care’ emphasise ‘the relational character of human life, the relational nature of self-conceptions . . . and the inevitable human dependences and interdependences too often ignored in theories that begin with adult moral agents pursuing their own conception of the good’.38 Writing from a United States perspective, Martha Fineman considers society to be dependent on the ‘caretaking labor’39 of ‘derivative dependants’,   Carers (Recognition and Services) Act 1995, s 1(1)(b).   Law Commission, Adult Social Care (n 29) 87.   See, eg M Hubbard, ‘The Myth of Independence and the Major Life Activity of Caring’ (2004) 8 Journal of Gender, Race and Justice 327. 36   See, eg Commission on Funding of Care and Support, Fairer Care Funding (n 4) 51. 37   For a summary of the vast literature on the ‘ethic of care’, see Herring, Older People in Law and Society (n 4) 124–30. 38   EF Kittay with B Jennings and AA Wasunna, ‘Dependency, Difference and the Global Ethic of Longterm Care’ (2005) 13 Journal of Political Philosophy 443, 453. 39   MA Fineman, The Autonomy Myth: A Theory of Dependency (New York, New Press, 2004) xvii. 33 34 35

6  Introduction that is those who assume or are assigned responsibility for the care of someone who is inevitably dependent on others.40 She criticises the fact that most of the costs of care are borne by carers themselves rather than being distributed amongst the true beneficiaries of care, whether institutional or individual. Many of Fineman’s arguments appear to be based on the paradigm of a parent (usually a mother) caring for a minor child. Even so, her general thesis could be applied to someone caring for an adult and the recognition of the informal carer in general, especially since she includes people who are elderly, ill or disabled within her concept of inevitable dependency.41 On her account, society has historically failed to recognise informal care in itself, often because of the insistence on placing marriage at the centre of family policy. Indeed, informal care has been described as the ‘invisible pillar’ of the welfare state,42 and Watson and Mears report that the use of terms such as ‘carer’ in social policy documents and research literature ‘is relatively recent although the activity has been going on since time immemorial’.43 Fineman analyses caring as creating a ‘social debt’ that ‘must be paid according to the principles of equality that demand that those receiving social benefits also share the costs when they are able’.44 She considers every member of society to be obligated by that debt, and not only the direct recipients of the care, since the debt ‘transcends individual circumstances’.45 A societal response to the plight of the carer, she argues, is not a matter of empathy or altruism, but of the preservation of society itself. Similarly, Watson and Mears categorise support for carers not as a form of pure welfare provision but as an ‘astute and compassionate investment’.46 At the moment, however, according to Fineman’s analysis, market institutions can be ‘free-riders . . . appropriating the labor of the caretaker’ for their own ends.47 Fineman envisages the repayment of the social debt through mechanisms such as tax benefits and subsidies, as well as the restructuring of the workplace and other institutions.48 Maxine Eichner subjects Fineman’s work to exhaustive analysis. She begins positively by claiming that Fineman’s approach ‘changes the basis of entitlement from need to desert, a far more honorable – and politically

  ibid 35–36.   ibid 35. 42   S Moullin, ‘Care in a New Welfare Society: Unpaid Care, Welfare and Employment’ (London, Institute for Public Policy Research, 2007) 7. 43   EA Watson and J Mears, Women, Work and Care of the Elderly (Aldershot, Ashgate, 1999) 2. 44  Fineman, The Autonomy Myth: A Theory of Dependency (n 39) xvii. 45   ibid 47. 46   Watson and Mears, Women, Work and Care of the Elderly (n 43), 193. 47  Fineman, The Autonomy Myth: A Theory of Dependency (n 39) xviii. 48   For an argument that care should be recognised as work and paid for by taxpayers, see EF Kittay, ‘A Feminist Public Ethic of Care Meets the New Communitarian Family Policy’ (2001) 111 Ethics 523. 40 41



1.2  Social Policy Context 7

palatable – form of entitlement in our society’.49 While arguments on desert are often associated with the justification for punishment,50 it is possible to argue that it should play a role in theories of redistributive as well as retributive justice.51 Eichner, however, suggests that Fineman may proceed too quickly from the fact of inevitable dependency to the normative claim that it generates an obligation on the part of the state to support caring.52 As Eichner points out, ‘there are a number of instances in which the actions of private citizens produce benefits for society without accruing any legal or moral right to compensation’.53 This bears a resemblance to arguments on voluntariness and risk-taking in the context of unjust enrichment, which are discussed in chapter four of this book. Eichner is uncomfortable with the use of economic analogies such as ‘debt’ to characterise complex problems of public policy. She offers an alternative consequence of the inevitability of dependency, which she says produces an even stronger justification for a state obligation than Fineman’s analysis. She prefers to focus on the obligation to support the vulnerable care recipient herself rather than any duty owed to the carer. Eichner suggests that the state should support care work by enabling carers to combine their obligations with work in the labour market, rather than ‘directly subsidise . . . carework in private homes’.54 Eichner argues that her own ‘public integration’ model is more likely to secure gender equality, and that it recognises the value of care work without requiring women (upon whom caring obligations usually fall)55 to withdraw from more public aspects of life in order to perform it. She also points out that subsidy models generally aim only to replace wages and benefits lost during the caring period, and not losses of opportunity. Although there are clear differences between these approaches, what is common to both of them is the focus on care as a matter of public concern, necessitating state support rather than the private remedies with which this book is concerned. The recognition of care as something valuable and worthy of support, however, is crucial whether it is a public or a private matter. The remainder of this subsection explores mechanisms by which carers are recognised and supported by the law in England and Wales.

49   M Eichner, ‘Dependency and the Liberal Polity: on Martha Fineman’s The Autonomy Myth’ (2005) 93 California Law Review 1285, 1291. 50   See, eg A von Hirsch, Censure and Sanctions (Oxford, Clarendon Press, 1993). 51   J Moriarty, ‘Against the Asymmetry of Desert’ (2003) 37 Noûs 518. 52   Eichner, ‘Dependency and the Liberal Polity: on Martha Fineman’s The Autonomy Myth’ (n 49) 1310–11. 53   ibid 1311. 54   ibid 1287. 55   See the various studies cited in Herring, Older People in Law and Society (n 4) 98–99.

8  Introduction 1.2.2.2  Current Statutory Recognition and Support of the Carer in England and Wales Some statutory recognition of the carer, leading to the availability of support for carers,56 is emerging in England and Wales. For example, the Carers (Recognition and Services) Act 1995 granted carers the right to an assessment of their ability to provide care when a local authority is ascertaining a care recipient’s need for more formal community care. The Carers and Disabled Children Act 2000 made the right to an assessment independent of the care recipient’s assessment, and gave local authorities powers to provide services for carers. The Carers (Equal Opportunities) Act 2004 then placed local authorities under a duty to inform carers of their rights under the previous two Acts, and required consideration of the carer’s employment, training and housing needs as part of the assessment. Under the 2004 Act, a local authority may also enlist the help of housing, health, education and other local authorities in providing support to carers. This has been described as a ‘major cultural shift’, since it involved seeing carers ‘not so much as unpaid providers of care services for disabled people, but as people in their own right’.57 In the employment context,58 one example of recognition for carers is the introduction by the Work and Families Act 2006 of a right to request flexible working for those who care for certain adults.59 This accords somewhat with Eichner’s suggested approach. Regulations currently restrict eligibility for the right to request flexible working to a carer who is a spouse, same-sex civil partner or relative of the care recipient, or one who lives in the same household as the care recipient,60 but the Government has proposed that the right should be extended to all employees.61 Moreover, the definition of discrimination on grounds of disability in the Equality Act 201062 is broad enough to include carers due to the concept of ‘associative’ discrimination.63 Similar concepts are 56   See, generally E Victor, ‘A Systematic Review of Interventions for Carers in the UK: Outcomes and Explanatory Evidence’ (Essex, Princess Royal Trust for Carers, 2009). 57  Clements, Carers and their Rights: The Law relating to Carers (n 5) [1.3]. 58   See, eg R Horton, ‘Care-giving and Reasonable Adjustment in the UK’ in N Busby and G James (eds), Families, Care-Giving and Paid Work: Challenging Labour Law in the 21st Century (Cheltenham, Edward Elgar, 2011). 59   Work and Families Act 2006, s 12, amending Employment Rights Act 1996, s 80F. 60   Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations, SI 2006/3314, r 5, inserting Flexible Working (Eligibility, Complaints and Remedies) Regulations, SI 2002/3236, r 3B. 61   Department of Business, Innovation and Skills, Consultation on Modern Workplaces (BIS, 2011) ch 4. 62   Equality Act 2010, s 13. 63   See, eg Clements, Carers and their Rights: The Law relating to Carers (n 5) [13.9]–[13.30]. See also N Busby, ‘Carers and The Equality Act 2010: Protected Characteristics and Identity’ (2011) 11 Contemporary Issues in Law 71 for a discussion of the failure to include being a carer as a specific protected characteristic.



1.2  Social Policy Context 9

evident in the European Court of Justice’s decision in Case C-303/06 Coleman v Attridge Law,64 which required the Disability Discrimination Act 1995 to be interpreted as covering carers of disabled children even though the carers are not disabled themselves.65 As a result of this decision, Jonathan Herring argues that a refusal to accede to a carer’s request for flexible working could constitute disability discrimination in certain circumstances.66 Despite the initiatives described above, the overall position of the informal carer is often regarded as inadequate,67 although the Government does have ambitious plans to improve that position.68 One reason for the current weakness, in Herring’s view, is that several of the schemes are ‘largely permissive, authorizing local authorities to provide . . . services . . . rather than dictating that they must’.69 In their Report on adult social care law in England and Wales,70 the Law Commission proposed inter alia that there should be a single statute governing the whole area including a statement of fundamental principles. They also made proposals on provision for carers,71 such as the introduction of a single duty to assess the carer and a definition of carers’ services to mirror the one used for community care services. Although they were of the view that local authorities are already required to provide some services to carers where ‘a carer’s needs gave rise to a critical risk to the sustainability of the caring role’,72 they recommended that local authorities should be required to use a national framework for the eligibility of carers for services, while retaining discretion over the actual eligibility criteria.73 This would encourage greater clarity but it does not appear to meet Herring’s criticism. All of the Law Commission’s proposals had to be considered by policy-makers alongside recommendations from the Commission on Funding of Care and Support, which supported the Law Commission’s recommendations on the entitlements of carers.74 In July 2012 the 64   Case C-303/06 Coleman v Attridge Law [2008] All ER (EC) 1105 (ECJ). See A Stewart, S Niccolai and C Hoskyns, ‘Disability Discrimination by Association: A Case of the Double Yes?’ (2011) 20 Social and Legal Studies 173 for discussion. 65   EBR Attridge Law LLP (formerly Attridge Law) v Coleman [2010] 1 CMLR 28 (EAT). 66  J Herring, ‘Carers’ in L Gostin et al (eds), Principles of Mental Health Law and Policy (Oxford, Oxford University Press, 2010) [10.73]. 67   See, eg Moullin, ‘Care in a New Welfare Society: Unpaid Care, Welfare and Employment’ (n 42). 68   Department of Health, Recognised, Valued and Supported: Next Steps for the Carers Strategy (n 13); Department of Health, Caring for our Future: Reforming Care and Support (Cm 8378, 2012) 34–35. 69  Herring, Older People in Law and Society (n 4) 102. 70   Law Commission, Adult Social Care (n 29). 71   See, especially ibid Part 7. 72   ibid [7.66]. 73   ibid 84. 74   Commission on Funding of Care and Support, Fairer Care Funding (n 4) 6.

10  Introduction Government published a detailed response to the Commission’s proposals simultaneously with its White Paper on the future of adult social care.75 As well as provisions on the general availability of services for carers, a publicly administered direct remuneration approach is in evidence in England and Wales.76 For example, a carer’s allowance is a limited benefit payable to a person who spends at least 35 hours per week caring for someone who is herself in receipt of certain benefits related to illness or disability.77 It could be argued that such benefits should be taken into account by a judge adjudicating on a private law claim,78 or even that the availability of the benefits renders a discussion of private law remedies futile and unnecessary.79 One counter-argument is that many jurisdictions are apparently content to adjust private property rights in recognition of the consequences of other relationships, such as marriage, even in the context of a welfare state.80 In any event, care-related benefits frequently go unclaimed,81 and they have been roundly criticised for their inadequacy.82 Many of those eligible for social care can also obtain money from a local authority in order to purchase care services under the Direct Payment Scheme,83 regulated by the Health and Social Care Act 2001.84 The scheme 75   Department of Health, Reforming the Law for Adult Care and Support: The Government’s response to Law Commission Report 326 on Adult Social Care (Cm 8379, 2012); Department of Health, Caring for our Future: Reforming Care and Support (n 68). 76   For an analysis of the pilot schemes implementing individual budgets, and the apparently limited use of the budgets to pay carers, see C Glendinning et al, ‘The Individual Budgets Pilot Projects: Impact and Outcomes for Carers’ (York, Social Policy Research Unit, 2009). See, generally C Hatton and J Waters, ‘The National Personal Budget Survey’ (London, Think Personal, Act Local, 2011). 77   The applicant in Re Land (decd) received a carer’s allowance of £36 per week ([2006] EWHC 2069 (Ch), [2007] 1 WLR 1009 [2]). The amount currently payable is £58.45 per week, and there are restrictions based on age, income and student status: Directgov, ‘Carer’s Allowance’ www. direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTaxCreditsAndOtherSupport/ Caringforsomeone/DG_10018705. Re Land is discussed in ch 5. 78   In New Zealand, the court is instructed to disregard a range of benefits when making an order for family provision: Family Protection Act 1955 (NZ), s 13. In England and Wales, courts are generally reluctant to attach a great deal of significance to the availability of state support for a family provision applicant, particularly in cases involving large estates. See, eg Re E, E v E [1966] 1 WLR 709 (Ch); Re Collins (decd) [1990] Fam 56, 61–62 (Hollings J); Ilott v Mitson [2011] EWCA Civ 346, [2011] 2 FCR 1 [75] (Arden LJ). 79   For a response to this argument, see section 1.2.3 below. 80   In her dissenting judgment in Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534, Lady Hale was anxious that a marital agreement should not be given such weight as to allow a wife to ‘cast the burden of supporting her husband onto the state’ ([190]). For an argument that financial support should be a matter of public liability rather than private law, see KJ Gray, Reallocation of Property on Divorce (Abingdon, Professional Books, 1977) 302–34. 81   Carers UK, ‘Carers Missing Millions: A report into carers’ unclaimed benefits’ (London, Carers UK, 2010). 82  Herring, Older People in Law and Society (n 4) 100–101. 83   cf the limitations on the availability of such social care, discussed in section 1.2.3.4 below. 84  Health and Social Care Act 2001, s 57. For an international comparative analysis of ‘cash-for-care’ schemes, see H Arksey and PA Kemp, ‘Dimensions of Choice: A Narrative Review of Cash-for-Care Schemes’ (York, Social Policy Research Unit, 2008).



1.2  Social Policy Context 11

is intended to ‘increase the choice, flexibility and independence of the care recipient’.85 A significant limitation, however, is that a Direct Payment recipient is often prohibited from purchasing services from spouses, civil partners or people living with the recipient as such, or from close relatives living in the same household.86 The definition of such a relative has been described as ‘expansive’,87 and contrasts with the approach to eligibility to request flexible working under the Work and Families Act 2006. A relative can be paid through Direct Payments where the local authority concerned is ‘satisfied that securing the service from such a person is necessary . . . to meet satisfactorily the prescribed person’s need for that service’,88 but Luke Clements claims that local authorities often erroneously assume that ‘exceptional circumstances’ must be present before this threshold is met.89 The Government has signalled its intention to increase the use of Direct Payments and personal budgets,90 including in respect of services provided to carers themselves,91 although the National Audit Office has emphasised that more should be done in order to ensure value for money when the availability of these mechanisms is extended.92 While it can result in both eligibility and ineligibility, the question whether a carer and a care recipient live in the same household can therefore assume crucial importance in the public support context. As chapter five demonstrates, the same is presently true of claims by carers under family provision statutes. This present piecemeal recognition of carers in England and Wales contrasts with the wide recognition of the relationship between carer and care recipient on a comparable basis to conjugal cohabitants in some Australian states and territories, as discussed in chapters five and six. 85   A Stewart, ‘Home or Home: Caring about and for Elderly Family Members in a Welfare State’ in R Probert (ed), Family Life and the Law (Aldershot, Ashgate, 2007) 175. 86   For a full list of presumptive exclusions see Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations, SI 2009/1887, rr 11(2) and 12(3). 87   Stewart, ‘Home or Home: Caring about and for Elderly Family Members in a Welfare State’ (n 85) 173. 88   SI 2009/1887, rr 11(1) and 12(2). 89  Clements, Carers and their Rights: The Law relating to Carers (n 5) [5.35]. 90  Department of Health, A Vision for Adult Social Care: Capable Communities and Active Citizens (Department of Health, 2010) ch 4; Department of Health, Caring for our Future: Reforming Care and Support (n 68) ch 7. A personal budget is a mechanism by which an individual can control the purchasing of care services for which they are eligible. It ‘can be taken by an individual as a direct (cash) payment; as an account held and managed by the [relevant] council in line with the individual’s wishes; or as an account placed with a third party (provider) and called off by the individual; or as a mixture of these approaches’ (ibid 15 fn 22). 91   HM Government, ‘Recognised, Valued and Supported: Next Steps for the Carers Strategy’ (Department of Health, 2010) [3.4]. 92   National Audit Office, Oversight of User Choice and Provider Competition in Care Markets (2010–12, HC 1458).

12  Introduction 1.2.3  Private Law Support for Carers This subsection considers whether the use of private law remedies to support carers is necessary or justifiable in principle, in the light of the arguments on state support. Of course, the suitability of particular private law mechanisms to benefit carers is considered throughout the course of the book. The subsection begins by assessing the potential inadequacy of public support as a justification for the use of private support. A proposal based on private law is then evaluated. 1.2.3.1  The Limitations of State Support In contrast to the writers considered above, Mika Oldham places more of an emphasis on private law remedies for the carer. On the one hand, she does accept that carers are ‘effectively stepping in to discharge a duty that in fact falls on the State’,93 and on that basis advocates the availability of a restitutionary claim against the state for care work provided. On the other hand, she acknowledges that public policy considerations make this unlikely. On Oldham’s account, England has never been a true welfare state because the state is not the sole provider of welfare.94 She appears to work on the assumption that public provision will never be adequate and she expresses concern about the heavy financial burden that would be imposed upon the state in the absence of informal caring. Indeed, the total amount of informal care provided in the UK has been valued at £87 billion per year.95 Herring accepts this, albeit retaining his disappointment that financial considerations, rather than the ‘real value’ of care, provide the focus of debate.96 The potential burden on the state is particularly significant given that care needs are expected to increase by 87 per cent between 2002 and 2051.97 The previous government predicted a £6 billion funding gap in formal adult social care within two decades.98 Understandably, it was therefore 93   MPC Oldham, ‘Financial Obligations within the Family – Aspects of Intergenerational Maintenance and Succession in England and France’ [2001] Cambridge Law Journal 128, 165. 94   ibid 133. 95  L Buckner and S Yeandle, ‘Valuing Carers – Calculating the Value of Unpaid Care’ (London, Carers UK, 2007). cf G Conochie, ‘Supporting Carers: The Case for Change’ (Essex, Princess Royal Trust for Carers and Crossroads Care, 2011) for an argument that further savings in public expenditure could be made if carers were better supported. 96   Herring, ‘Carers’ in Gostin et al (eds), Principles of Mental Health Law and Policy (n 66) [10.12]. 97   R Hancock et al, ‘Paying for Long-Term Care for Older People in the UK: Modelling and Distributional Effects of a Range of Options’ (Kent, Personal Social Services Research Unit, 2007). 98   Department of Health, The Case for Change: Why England Needs a New Care and Support System (London, Department of Health, 2008) 14.



1.2  Social Policy Context 13

anxious to recognise the importance of informal caring, and published proposals under which informal carers would be ‘universally recognised and valued as being fundamental to strong families and stable communities’.99 Laudable as this was, the target date for the implementation of the proposal was 2018.100 The present coalition government set up a Commission on Funding of Care and Support (the ‘Dilnot Commission’), which reported in July 2011.101 They warned that the current system of formal social care provided by local authorities is inconsistent and unfit for purpose, and indeed the Equality and Human Rights Commission found ‘many instances of [formal] home care . . . where human rights were breached or put at risk because of the way care was delivered’.102 The Dilnot Commission opined that ‘the Government must devote greater resources to the adult social care system’ in England.103 These proposals were supported by Carers UK and other relevant organisations.104 An ambitious White Paper on the future of social care published in July 2012 was explicitly ‘not intended to set out a funding settlement for care and support in future years’,105 although the accompanying ‘progress report’ on funding did agree with the principles of the Dilnot Commission’s model and rather loosely committed to implementing it ‘if a way to pay for it can be found’.106 A sustainable social care system such as that outlined by the Dilnot Commission would make life easier for many informal carers,107 if and (crucially) when108 it is properly implemented. Budgets remain stretched,109 99

16.

  Department of Health, Carers at the Heart of 21st‑Century Families and Communities (n 17)

  See also HM Government, Recognised, Valued and Supported: Next Steps for the Carers Strategy (n 13), published by the current government. 101   Commission on Funding of Care and Support, Fairer Care Funding (n 4). 102  Equality and Human Rights Commission, Close To Home: An Inquiry into Older People and Human Rights in Home Care (Manchester, Equality and Human Rights Commission, 2011) 95. See also Which?, ‘Which? Exposes Failings in Home Care System’ (16 March 2012) www.which.co.uk/news/2012/03/which-exposes-failings-in-home-care-system-281517/. cf Department of Health, Caring for our Future: Reforming Care and Support (n 68) chs 5 and 6. 103   Commission on Funding of Care and Support, Fairer Care Funding (n 4) 8. 104   Carers UK, ‘Carers UK: Act on Dilnot to Fix Broken Social Care System’ (www.carersuk. org/newsroom/item/2203-carers-uk-act-on-dilnot-to-fix-broken-social-care-system); Carers UK, ‘The Dilnot Commission and Carers’ (London, Carers UK, 2011). 105   Department of Health, Caring for our Future: Reforming Care and Support (n 68). 106   Department of Health, Caring for our Future: Progress Report on Funding Reform (Cm 8381, 2012) 6. For criticism, see Age UK, ‘Age UK Response to Social Care White Paper’ (11 July 2012) www.ageuk.org.uk/latest-news/age-uk-response-to-social-care-white-paper/. 107   Commission on Funding of Care and Support, Fairer Care Funding (n 4) 52. 108  N Hawkes, ‘Reform of Long Term Care for Elderly Must not be Postponed, Dilnot Says’ [2011] British Medical Journal 343. 109   See, eg R (on the application of W) v Birmingham City Council [2011] EWHC 1147 (Admin), [2011] Eq LR 721; R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, [2011] PTSR 1266; R (on the application of JM) v Isle of Wight Council [2011] EWHC 2911 (Admin), [2012] Eq LR 34; R (on the application of KM) v Cambridgeshire County Council [2012] UKSC 23, (2012) 162 NLJ 780; Age UK, ‘Care in Crisis 2012’ (London, Age UK, 2012); N Triggle, ‘State-Funded Elderly Care Declining, Labour Figures Suggest’ (BBC News 100

14  Introduction however, and the extent of resistance to official involvement by some care recipients should not be underestimated.110 In spite of the potential expansion of state-provided care, then, private law remedies for informal carers, such as the mechanism proposed by Oldham, are important and may be necessary in some cases. 1.2.3.2  Oldham’s Proposal In response to the funding shortfalls discussed above, Oldham advocates a system of ‘successional priority’, which would give a person who takes care of a relative a prioritised right of provision from that relative’s estate.111 She suggests that such a ‘priority’ concept could be combined with equity release and a state-sponsored loan system to provide a more instantaneous incentive for an informal carer.112 Oldham claims that private law measures such as those embodied in her proposal, with the notion of a quid pro quo for care, would foster the idea of interdependence rather than dependence. She goes as far as to argue that such measures could be necessary to support and encourage care. Oldham’s proposal is somewhat underdeveloped. She accepts that its implementation would require ‘careful deliberation of many issues’,113 implying that she has not yet performed such a task. Nevertheless, as well as reflecting the concept of desert that can be found in Fineman’s writing, it may well be that the possibility of private payment is necessary to encourage people to care for others, and considerations of reward encouraging intervention have been said to justify claims by the provider of a service in the context of maritime salvage.114 As Katie Wise puts it: ‘[e]ncouraging family caregiving is sound public policy, as it can help contain the costs of caring for the nation’s growing elderly population, while promoting positive family relationships’.115 While it is true that encouraging non-familial or ‘pure’ caring does not give rise to the promotion of Online, 16 May 2012) www.bbc.co.uk/news/health-18026534. cf Department of Health, Caring for our Future: Progress Report on Funding Reform (n 106) 16. 110   See, eg Special Trustees for Great Ormond Street Hospital for Children v Rushin, Re Morris (decd) [2001] WTLR 1137 (Ch). 111  Oldham, ‘Financial Obligations within the Family – Aspects of Intergenerational Maintenance and Succession in England and France’ (n 93) 173–77. 112   For a general discussion of the use of equity release by the elderly, see L Fox O’Mahony, Home Equity and Ageing Owners: Between Risk and Regulation (Oxford, Hart Publishing, 2012) 269–317. cf ‘deferred payment’ (discussed at n 154), which is in substance a state-sponsored loan facilitating payment for formal care. 113  Oldham, ‘Financial Obligations within the Family – Aspects of Intergenerational Maintenance and Succession in England and France’ (n 93) 173. 114   See, eg FD Rose, Kennedy & Rose: Law of Salvage, 7th edn (London, Sweet & Maxwell, 2009) [1.036]. 115  K Wise, ‘Caring for our Parents in an Aging World: Sharing Public and Private Responsibility for the Elderly’ (2002) 5 New York University Journal of Legislation and Public Policy 563, 598.



1.2  Social Policy Context 15

familial relationships, it would serve the important goal of encouraging social solidarity generally.116 Indeed, while Oldham tends to focus on ‘priority’ for relatives who provide care, she admits that there may be ‘no compelling reason’ to take a restrictive approach to the matter,117 and her scheme could easily be applied to ‘pure’ carers who are not relatives. In the light of fears that the availability of informal care will reduce in the future,118 the encouragement of care through private financial incentives could be a useful tool in preventing this decline. At first glance, arguments involving private law seem far removed from the ideal of state provision for carers (and indeed of care) considered above. Nevertheless, they could be consistent with Wise’s argument that the state and the family should share responsibility for the care of the elderly.119 Oldham’s thoughts have a pragmatism that contrasts with what has been called the excessive idealism of the ‘edicts issued by Fineman to the State’.120 Moreover, Fineman herself accepts that care recipients ‘owe an individual debt to their individual caretakers’, which exists alongside the broader societal debt,121 and Simone Wong is content to invoke her broad analysis in the context of property reallocation as between unmarried conjugal cohabitants.122 Nevertheless, Oldham’s proposal is still open to criticism, and some of the controversial issues are considered in section 1.2.3.3. 1.2.3.3  Some Criticisms: Altruism and the Expectation of a Remedy Oldham admits that some would reject her scheme on the basis that care should be provided on the basis of affection rather than mercenary considerations. Indeed, most of the subjects of a study by Karen Rowlingson were ‘uncomfortable with the idea of linking any financial reward with the provision of care’,123 and a report on care funding has admitted that   See further section 5.2.1.3 below.  Oldham, ‘Financial Obligations within the Family – Aspects of Intergenerational Maintenance and Succession in England and France’ (n 93) 173. 118  Caring Choices, ‘The Future of Care Funding: Time for a Change’ (London, King’s Fund, 2008) 17. See also Herring, ‘Carers’ in Gostin et al (eds), Principles of Mental Health Law and Policy (n 66) [10.13]–[10.15]. 119  Wise, ‘Caring for our Parents in an Aging World: Sharing Public and Private Responsibility for the Elderly’ (n 115). 120   H Reece, ‘The Autonomy Myth: A Theory of Dependency’ (Book Review) (2008) 20 Child and Family Law Quarterly 109, 113. 121  Fineman, The Autonomy Myth: A Theory of Dependency (n 39) 48. 122   S Wong, ‘Caring and Sharing: Interdependence as a Basis for Property Redistribution’ in A Bottomley and S Wong (eds), Changing Contours of Domestic Life, Family and Law: Caring and Sharing (Oxford, Hart Publishing, 2009). 123  K Rowlingson, ‘Attitudes to Inheritance: Focus Group Report’ (Bath, University of Bath, 2004) 38, cited in M Izuhara, Housing, Care and Inheritance (Abingdon, Routledge, 2008) 110. 116 117

16  Introduction ‘unpaid carers are by definition not “in it for the money”’.124 The idea of financial rewards is likely to be particularly controversial in the familial context. On the other hand, Oldham claims that this sort of view can fail to take account of the ‘modern, economy-driven world’.125 Indeed, while Elizabeth Watson and Jane Mears found that the carers in their study were not motivated by reward and that some considered it rewarding in itself, the authors identified a risk of over-sentimentalising care if it were seen to relate to love alone.126 The opportunity costs of caring can be very high: it has been claimed that UK carers lose an average of £11,000127 per year due to their caring responsibilities, and significant health problems often arise as a result of those same responsibilities.128 That said, Wells has cautioned against provision for carers going beyond the enforcement of promises on the basis that ‘the economic disadvantages suffered by carers may not be inherent in the relationship itself’.129 As far as families are concerned, it should be noted that adult children are currently under no legal obligation to provide care or financial support for their elderly parents.130 Moreover, the treatment of care as something merely inherent in familial relationships can easily lead to its underappreciation by society. As will be frequently demonstrated in the course of the book, the courts sometimes make assumptions about expectations attached to particular categories of relationship when evaluating care in certain areas of private law.131 In others, by contrast, a familial relationship facilitates the very possibility of a claim.132 Whatever special considerations might apply to familial carers, Jeroen Kortmann points to research suggesting that ‘rewarding people may actually cause them to lose interest in an activity they once enjoyed’,133 such that ‘good Samaritans may start to attribute their helpful conduct to external reasons (the rewards) rather than to internal reasons (their sense of   Caring Choices, ‘The Future of Care Funding: Time for a Change’ (n 118) 26.  Oldham, ‘Financial Obligations within the Family – Aspects of Intergenerational Maintenance and Succession in England and France’ (n 93) 177. 126   Watson and Mears, Women, Work and Care of the Elderly (n 43) 30–32. 127  House of Commons Work and Pensions Committee, Valuing and Supporting Carers (2007–08, HC 485) [102]. See also BBC News Online, ‘Unpaid Carers Cost Economy £5.3bn, Charity Warns’ (27 June 2012) www.bbc.co.uk/news/health-18599455. 128   Department of Health, Carers at the Heart of 21st-Century Families and Communities (n 17) ch 5; Princess Royal Trust for Carers, ‘Always On Call, Always Concerned: A Survey of the Experiences of Older Carers’ (n 4). 129   RP Wells, ‘Testamentary Promises: A New Approach’ (PhD thesis, King’s College London 2007) 319. 130   J Herring, Family Law, 5th edn (Harlow, Pearson, 2011) 705–708. For a philosophical discussion, see S Keller, ‘Four Theories of Filial Duty’ (2006) 56 Philosophical Quarterly 223. 131   See sections 2.2.4.4 and 3.3.2 below. 132   See, generally ch 5. 133   J Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford, Oxford University Press, 2005) 93. 124 125



1.2  Social Policy Context 17

moral obligation)’.134 Nevertheless, he also accepts that ‘the “undermining effect” does not occur with regard to those who would not intervene in a no-rewards system’.135 If the fears of a future shortage of informal care prove well-founded, it could be that society needs to target precisely those individuals. The mere fact that private support for carers is necessary or desirable from the carer’s perspective does not mean, however, that it should occur. An important criticism of the suggestion that a care recipient should be expected to provide in some way for a carer is that, quite apart from any moral duty that may be owed by the care recipient,136 someone who voluntarily assumes caring obligations towards a care recipient cannot and should not expect payment after the event. The absence of an enforceable contract between carer and care recipient could suggest that the care was provided gratuitously and effectively intended as a gift.137 This raises similar issues to the idea that voluntarily-rendered services cannot necessarily constitute a form of unjust enrichment, as well as the debate about concepts such as voluntariness, free acceptance and risk-taking in that field.138 However, it is questionable to assume that the decision to care for another person is voluntary. Fineman highlights the tendency to ‘ignore the fact that choice occurs within the constraints of social conditions, including history and tradition’.139 While she makes her argument in the course of a discussion on the allocation of childcare responsibilities within families, it could also apply to care more generally.140 There must surely be cases where a carer is effectively placed under a ‘moral compulsion’ to provide care.141 Conversely, the care recipient may herself have helped to foster an expectation of a remedy, and she may also have the means to provide it. Indeed, the significance of the perceived unconscionability of the care recipient’s conduct towards the carer pervades this book.142 Finally, if it is necessary to remunerate carers to encourage caring, an argument considered above, it could equally be seen as unjust not to facilitate a remedy for those who were motivated purely by altruism (defined  ibid 94.  ibid 94. 136   See, eg ibid 84. 137   See, eg the notion of ‘donative intent’ present in the Canadian Law of unjust enrichment, considered in section 4.5 below. 138   These arguments are considered in Ch 4. 139  Fineman, The Autonomy Myth: A Theory of Dependency (n 39) 41. 140   See, eg H Arksey and C Glendinning, ‘Choice in the Context of Informal Care-Giving’ (2007) 15 Health and Social Care in the Community 165. 141  See, eg Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio (n 133) 95–98. 142   See section 1.3 below. 134 135

18  Introduction as being ‘opposed to egoism or selfishness’143). The adjustment of private property rights is inevitably controversial at least while both parties are alive. On the other hand, a compensation principle has recently been developed by the English judiciary in the context of financial relief on divorce, in order to recompense for the disadvantages suffered by spouses who care for children or make other sacrifices.144 Moreover, the difficulties of requesting or expecting inter vivos payment in a domestic context involving vulnerable individuals might at least justify retrospective payment out of an estate, particularly since testamentary freedom is already curtailed on other bases.145 The specific arguments relating to a number of private law mechanisms are considered in the body of the book, although it is helpful to offer some general conclusions on the utility of private law. 1.2.3.4  Evaluation of Private Law Arguments in General Although Oldham does not develop the details of her ‘successional priority’ proposal, part of the discussion in this book does so even without that specific aim. For the moment, the important point is that a private law solution to the problem of support for carers may sometimes be necessary even if state support is considered normatively desirable. Moreover, in some circumstances an expectation of remuneration is a reasonable one, and the idea that a care recipient should meet that expectation could also be reasonable depending on the available resources. The resource-based qualification to the legitimacy of a private law remedy is important, not least because of the claims of non-caring dependants and others on the care recipient’s property.146 Karen Rowlingson and Stephen McKay suggest that the increase in home ownership makes it more likely that people will inherit something when an older relative dies,147 but the cost of institutional or other formal care may militate against this trend.148 In broad contrast to health care provided under the National Health Service, many care recipients have to pay for formal social care on a means-tested basis.149 Local authorities are placed under a duty to recover payments   Oxford English Dictionary Online, ‘Altruism, n’ (Oxford, Oxford University Press, 2012).   See especially Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618.   See further section 5.2 below. 146   See, eg sections 3.5.5 and 5.2.2 below. 147  K Rowlingson and S McKay, ‘Attitudes to Inheritance in Britain’ (Bristol, Joseph Rowntree Foundation, The Policy Press, 2005) 6. Wells, ‘Testamentary Promises: A New Approach’ (n 129) 35–36 suggests that the same phenomenon could lead to an increase in disputes regarding testamentary promises. For a general discussion of home ownership and inheritance, see Fox O’Mahony, Home Equity and Ageing Owners: Between Risk and Regulation (n 112) 138–46. 148   See, eg Fox O’Mahony, Home Equity and Ageing Owners: Between Risk and Regulation (n 112) 32–37. 149   The Dilnot Commission reported that those with assets worth over £23,250 must fund their own care and receive no financial state support in order to do so. The relevant assets can include a home if no dependant is living in it: Commission on Funding of Care and 143 144 145



1.2  Social Policy Context 19

covering residential care in certain circumstances,150 and they also have a power to charge for non-residential services including personal care under the Health and Social Services and Social Security Adjudications Act 1983.151 The Dilnot Commission recommended that the maximum lifetime contribution towards care expected of any one individual should be capped at £35,000, and that ‘the the asset threshold for those in residential care beyond which no means-tested help is given should increase’.152 Nevertheless, under their proposed system people would be primarily responsible for their own care costs, with the state providing ‘social insurance’ subject to a significant ‘excess’.153 Any liability to pay for formal care, whether the liability crystallises before or after death, could have a significant impact on the availability of property with which to remunerate the informal carer.154 Moreover, some would doubtless argue that it is futile for the state to limit the financial liability of a care recipient in respect of formal care only for private law to impose additional liability towards informal carers. It is beyond the scope of the book to enter into detailed arguments about whether informal carers or indeed more formal care should be given greater state recognition in the context of a welfare state. Such questions relate more to social policy than law. Something of an analogy could be drawn with the Law Commission’s Report on adult social care law, in which it was emphasised that: ‘it is Government that must make political judgements about spending priorities and rights and responsibilities.’155 Support, Fairer Care Funding (n 4) 11. See, eg National Assistance (Assessment of Resources) Regulations, SI 1992/2977. cf the outgoing Labour Government’s proposed ‘National Care Service’ which would have been free at the point of delivery: HM Government, Building the National Care Service (n 4). The current government has signalled an intention to ‘break down barriers between health and social care funding to incentivise preventative action’: Department of Health, A Vision for Adult Social Care: Capable Communities and Active Citizens (n 90) 6. See also Department of Health, Caring for our Future: Reforming Care and Support (n 68) 57–61. 150   National Assistance Act 1948, s 22. 151   Health and Social Services and Social Security Adjudications Act 1983, Part VII. See, eg R v Somerset County Council, ex p Harcombe (1997) 96 LGR 444 (QB). This system would have been altered by the Personal Care at Home Act 2010, through which the previous Government could have required local authorities to provide personal care in the home free of charge for an indefinite period in certain circumstances. The current coalition government has announced that it does not intend to commence the relevant provisions: Department of Health, ‘Coalition Document sets out Positive Direction for Health and Social Care’ (20 May 2010) www.dh.gov.uk/en/MediaCentre/Pressreleases/DH_116236. 152   Commission on Funding of Care and Support, Fairer Care Funding (n 4) 5. cf Department of Health, Caring for our Future: Progress Report on Funding Reform (n 106). 153   ibid 20. 154   The property at issue in Campbell v Griffin [2001] EWCA Civ 990, [2001] WTLR 981, an estoppel case discussed in ch 2, was subject to a statutory charge imposed under s 22 of the 1983 Act. The Government has committed to the universal availability of ‘deferred payment’, so that from April 2015 ‘[n]o one will have to sell their home in their own (or spouse’s) lifetime to pay for residential care’: Department of Health, Caring for our Future: Progress Report on Funding Reform (n 106) 17. 155   Law Commission, Adult Social Care (n 29) [1.12].

20  Introduction Conversely, from a pragmatic perspective, remedies are in fact being awarded (and denied) to carers in private law cases both in England and Wales and in the Commonwealth and such cases are worthy of analysis. Even if private law is not a comprehensive solution, a detailed consideration of its utility as a means of support for the informal carer is therefore justifiable. 1.3  QUESTIONS TO BE ADDRESSED IN THE BOOK

This section begins by outlining some scenarios involving carers and care recipients that form the basis of the book. It then describes the key questions that the book seeks to answer, which cut across various legal categories. Section 1.4 then outlines those areas of law with which the book is concerned. 1.3.1  Core Scenarios with which the Book is Concerned It is hoped that a general description of the main scenarios with which this book is concerned will help to clarify the analysis that follows. These two main scenarios (along with one secondary scenario), and specifically the differences between them, are a recurring theme in the book, although the facts of each scenario are expanded upon or modified as necessary in the course of the discussion. All three are focused on the relationship between the carer and the care recipient, and not on the potential involvement of third parties. The same can generally be said for the book as a whole. The question whether, for example, an adult child of an elderly care recipient owes an obligation to provide for a carer is nevertheless an interesting one,156 and it could be argued that the offspring has benefited from the care in a similar way to the care recipient.157 The argument is weakened, however, by the absence of a legal duty to care or provide for one’s elderly parents in England and Wales and other jurisdictions.158 The first core scenario with which this book is concerned is one in which a care recipient is provided with care in her own home by a friend or relative in the absence of an enforceable contract covering the care. The care recipient indicates in some way that the carer will receive some property or other benefit in return for his efforts, often on the death 156  See, eg Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown. A Consultation Paper (Law Com CP No 179, 2006) 212–13. 157  In Rubin v Gendemann [2012] ABCA 38, the claimant cited care services to the defendant’s mother as an aspect of her unjust enrichment claim. No such care was found to have taken place on the facts. 158   See, eg section 1.2.3.3 above.



1.3  Questions to br Addressed in the Book 21

of the care recipient, and for some reason the relevant benefit fails to materialise.159 The second scenario is similar to the first, except that no indication of a benefit for the carer is made. Rather, the care recipient simply accepts the care provided and again it could be said that insufficient remuneration materialises. Of course, the notion of ‘sufficient’ remuneration raises difficulties where a care recipient provides some inter vivos or testamentary benefit to her carer, not least since it has been said that even the idea of contractual consideration ‘precludes any inquiry as to adequacy’.160 This point is discussed throughout the book.161 Although the distinction between these scenarios is not easy to draw,162 much of the book is concerned with the extent to which there is a factual, legal or normative difference between them. Section 1.3.2 expands upon the importance of these scenarios to the nature of the book, introducing the complementary concepts of unconscionability of dealing and outcome. A third relevant scenario involves a situation where a benefit (promised or not) is in fact transferred by a grateful care recipient to her carer but the transfer is later challenged by the care recipient or (more likely) her estate. This book is generally concerned with a converse question whether a carer should receive a benefit in spite of the fact that none was forthcoming rather than whether a benefit should be retained by the carer. Undue influence is nevertheless discussed in the last substantive chapter of the book as an example of the law’s approach where a benefit has been transferred. 1.3.2  Unconscionability of Dealing and Outcome The main question to be addressed in this book is whether private law remedies for carers do, can and should, address unconscionability of dealing or unconscionability of outcome. This distinction has been identified by Kevin Gray and Susan Francis Gray in the particular context of proprietary estoppel and the constructive trust.163 In this book, it is used more generally and in a modified form. 159   For a wide-ranging discussion of legal approaches to testamentary promises, see Wells, ‘Testamentary Promises: A New Approach’ (n 129). For an historical analysis of a body of New Jersey case law concerning promises made in return for care, see H Hartog, Someday All This will be Yours: A History of Inheritance and Old Age (Cambridge, Massachusetts, Harvard University Press, 2012). 160   Midland Bank Trust Co Ltd v Green (No 1), [1981] AC 513 (HL) 531 (Lord Wilberforce). 161   See, eg sections 2.2.4.1, 2.3.4.1, 2.3.4.3, 3.4.3, 3.5.4, 5.4.9.3 and 5.4.10 below. 162   See, eg section 2.2.2.5 below. 163   K Gray and SF Gray, Elements of Land Law, 5th edn (Oxford, Oxford University Press, 2009) [9.2.86]–[9.2.87].

22  Introduction A focus on unconscionability of dealing could provide a remedy only where the care recipient made a promise or indication that the carer would receive a benefit, and the carer provides the service on that basis before he is disappointed. Such an approach, while controversial and difficult in itself, generally circumvents only requirements relating to matters such as certainty and formalities. By contrast, a desire to correct a perceived unconscionable outcome could justify a remedy on the basis that a carer simply deserves to be rewarded because of the service he has provided, notwithstanding the fact that no promise was ever made to him. An approach based on unconscionability of outcome could involve a much more fundamental intrusion into the property rights or the testamentary freedom of the care recipient.164 In the context of the constructive trust, Gray has pointed out that an ‘unconscionable outcome’ approach involves the imposition of a trust ‘wherever the end result of parties’ mutual dealings is to leave them with economic or proprietary allocations considered unacceptable to the conscience of equity’.165 In spite of the reference to ‘dealings’ in the quoted passage, it is clear that the focus of intervention is not on those dealings but on the end result produced by them. It must be pointed out that the concern of this book is limited to neither the imposition of a constructive trust nor the triggering of equity’s conscience as such. Instead, those aspects of the book concerning ‘unconscionability of outcome’ address the circumstances in which it is possible or appropriate for the law in general to intervene even in the absence of a promise or indication. For the purposes of this book, moreover, even addressing unconscionability of outcome encompasses consideration of the parties’ ‘dealings’ in a broad sense, since the trigger for legal intervention in the scenarios under discussion is care provided by one party for the other. It could be argued that unconscionability of outcome does not truly involve unconscionability if that is understood to imply some form of wrongdoing. This claim could be made on the basis that the only thing the care recipient has done ‘wrong’ is to accept the care without paying for it: she has not made any sort of promise or indication that she has later repudiated in words or actions.166 Conversely, there is some doubt over whether even ‘unconscionability of dealing’ involves wrongdoing. In the context of proprietary estoppel, for example, presented in this book as a prime example of ‘unconsciona164   See Wells, Testamentary Promises: A New Approach’ (n 129) 319 for some arguments in favour of limiting provision for carers to the enforcement of promises. 165   K Gray, ‘Property in Common Law Systems’ in AJ Van der Walt and GE Van Maanen (eds), Property Law on the Threshold of the 21st Century (Antwerp, MAKLU, 1996) 259–60. 166   An analogy could be drawn with Birks’ argument on ‘wrongdoing’ in the context of undue influence, discussed at 174 and section 7.3.3 below.



1.3  Questions to br Addressed in the Book 23

bility of dealing’, Lord Browne-Wilkinson cast doubt on the need to demonstrate ‘unconscionable conduct’ in Lim Teng Huan v Ang Swee Chuan.167 Indeed, in some estoppel cases an attempt to make a testamentary gift has failed for reasons outside the promisor’s control.168 In any case, the unconscionability to which this book refers is not intended in any technical sense. Indeed, Hilary Delany and Desmond Ryan highlight the dangers involved in using ‘unconscionability’ as ‘a vehicle for arriving at a desired result’ where it has little to do with the applicable principles.169 This, they argue, ‘ought to be avoided if the principle is not to be irreparably damaged on the grounds of growing concerns about legitimacy and doctrinal transparency’.170 Except in relation to proprietary estoppel,171 where it is at least arguable that unconscionability retains a substantive role,172 the word ‘unconscionable’ is generally used in this book simply to denote significant normative undesirability. The distinction between these two conceptions of unconscionability will be taken to correspond broadly with that between the first two scenarios introduced in section 1.3.1 above, and is a recurring theme throughout the book. The third scenario put forward in section 1.3.1, where a carer does receive a benefit from the care recipient but is challenged for some reason after the event, does not neatly address unconscionability either of dealing or outcome as outlined in this section. The dealings of the parties are, of course, being observed, but unlike in the other two scenarios it is the carer’s dealings, if any, that are really the subject of complaint. It is a hotly debated question173 whether undue influence, the mechanism through which transferred benefits are discussed in this book, involves actual wrongdoing or simply wrongdoing in the sense that, in Peter Birks’ words: ‘it is unconscientious to retain what ought to be given back.’174 Some of the areas of law outlined in section 1.4 have the potential to address both types of unconscionability. A degree of imprecision surrounding the meanings of unconscionability of dealing and outcome is inevitable. It is hoped that these are clarified to an extent in the course of   Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113 (PC) 117.   See, eg Campbell v Griffin (n 154), discussed at section 2.2.3.2 below. Conversely, dishonourable conduct by a defendant cannot necessarily be equated with unconscionability for the purposes of an estoppel claim: D Neuberger, ‘The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ [2009] Cambridge Law Journal 537, 541–42. 169  H Delany and D Ryan, ‘Unconscionability: A Unifying Theme in Equity?’ [2008] Conveyancer and Property Lawyer 401, 433. 170   ibid 433. 171   The doctrine is addressed in ch 2. 172   See section 2.2.4.3 below. 173   See section 7.3.3 below. 174   P Birks, ‘Undue influence as Wrongful Exploitation’ (2004) 120 Law Quarterly Review 34, 37. See, eg Hammond v Osborn [2002] EWCA Civ 885, [2002] WTLR 1125 [31] (Sir Martin Nourse). 167 168

24  Introduction discussing particular mechanisms, but a firm conclusion on which form of unconscionability is being addressed is not always possible. 1.3.3  The Purpose, Nature and Measure of Relief Another pertinent question, to which reference is made throughout the book, is the appropriate remedy that should be awarded to a carer who succeeds in a private law claim. There are many possible measures and bases of relief, as demonstrated in the range of claim categories that are considered in the course of the book. Indeed, there are difficulties even in defining the process that is occurring when a carer is granted a private law remedy, that is, in deciding whether he is being ‘compensated’, ‘rewarded’ or ‘remunerated’.175 These words are inherently bound up with the measure of relief and it would be inappropriate to express a concluded view on terminology here. It could be that ‘compensation’ focuses more on the loss or detriment suffered by the carer as a result of taking on caring responsibilities, while it is arguable that the true value of the services performed by the carer as a benefit conferred on the care recipient is recognised only if we are prepared to speak of ‘remuneration’ or ‘reward’. That said, the use of terminology as to the measure of relief is fluid even amongst members of the judiciary. In the Canadian case of Gould v Royal Trust Corp of Canada, Pearlman J described a claim by a carer as one for ‘compensation for unjust enrichment’ in respect of the services she had provided.176 The remedy given to a carer could, for example, satisfy any expectation generated by a promise, as occurs in some proprietary estoppel and testamentary promise cases. It could simply compensate the carer for loss incurred in reliance on a promise, which is deemed appropriate in other estoppel cases. A further possibility is for the remedy to be based on the carer’s future need for maintenance, which is the approach undertaken in most family provision cases. Such need might be said to be the strongest justification for providing a remedy to a carer in the first place, but also to devalue his care.177 Finally, the remedy could provide the carer with the reasonable value of the services performed, and thus be based upon the principles governing the award of a quantum meruit in the context of unjust enrichment. The amount of discretion conferred upon the court when deciding upon a remedy could also vary. The book attempts to draw a conclusion on which of these possibilities is most suitable, or whether any of them is 175   See Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio (n 133) 81–83 for a discussion of this issue. 176   Gould v Royal Trust Corp of Canada [2009] BCSC 1528 [159]. 177   See further section 5.4.11 below.



1.4  Subject Matter of the Book 25

suitable at all. It also analyses the extent of a reward that the carer can retain when one has been transferred by the care recipient but is the subject of a challenge on grounds of undue influence. 1.4  SUBJECT MATTER OF THE BOOK

This section outlines the categories of private law (broadly conceived) that form the substance of the discussion. As noted in section 1.1, a comparative approach will be adopted. It should be emphasised that this book does not attempt to provide a comprehensive comparative account of any given area of law. Rather, the focus is upon the English ‘law of carers’ and relevant comparisons from the Commonwealth are made where they offer interesting or useful alternatives. Because contract law (alongside part performance) is eliminated at the outset, section 1.4.1 discusses it in more detail than is used to discuss other private law mechanisms in the following subsections. 1.4.1  The Limitations of Contract Law and the Doctrine of Part Performance In Roman Law, the device of negotiorum gestio (a kind of quasi-contract) enabled a person to claim expenses for reasonably acting in the interests of another, even in the absence of an express arrangement.178 By contrast, English private law historically contained no general mechanism to provide for such a claimant in the absence of a contract, a position that Reinhard Zimmermann attributes to ‘the traditional individualism and the reserved mentality of the English people’.179 Duncan Sheehan argues against this traditional position and claims that English law does recognise a form of negotiorum gestio,180 while Kortmann argues that no general principle of relief yet exists even though there are a number of exceptions to the general rule.181 In any event, the difficulty with the general position as traditionally described is that the context in which informal care is provided may not 178   This institution, rooted primarily in altruistic ideals, has been incorporated into several European Civil Codes, notably the German Bürgerliches Gesetzbuch. See, eg R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford, Clarendon Press, 1996), ch 14; Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio (n 133) 106–10. 179  Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition ibid 435. 180  D Sheehan, ‘Negotiorum Gestio: A Civilian Concept in the Common Law?’ [2006] International and Comparative Law Quarterly 253. 181  Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio (n 133) 164–65.

26  Introduction permit sufficient certainty or intention to create legal relations to generate an enforceable contract.182 For that reason, and although there is research relating to ‘Private Care Agreements’ between relatives and similar arrangements,183 scenarios where there is a contract and the ‘carer’ is effectively a ‘care worker’ are outside the scope of the book. Rather, the focus of the inquiry is provided by selected areas of private law (broadly conceived) that could provide a remedy even where there is no contract. That said, it can be difficult to assess the evidence in order to establish whether or not there was in fact a contractual relationship. In Murphy v Rayner, for example, the judge found that a carer had deliberately misled the court by claiming that she had not been paid a wage for her work ‘to try to bolster her case as to her expectation of an interest in the [p]roperty’ controlled by the care recipient,184 which she pursued unsuccessfully via proprietary estoppel. Maddison v Alderson was an early attempt by an unpaid ‘housekeeper’ to claim an interest in the property of the person for whom she worked.185 The claimant used a contractual analysis in conjunction with the equitable doctrine of part performance. The jury found that she had been induced to work unpaid by an oral promise that she would be given a life interest in her ‘master’s’ house, and he had died intestate. The House of Lords accepted that the doctrine of part performance could in principle have been invoked to transfer the interest to her, thereby circumventing the formality requirements imposed by what was then the Statute of Frauds 1677. Nevertheless, her claim failed on the basis that the work she performed was not ‘unequivocally’ done with reference to a sufficiently certain contractual arrangement.186 In other words, the doctrine of part performance could operate only to enforce a contract that would have been valid but for the formality requirements relating to land, and only where there was a strong connection between that contract and the acts of part performance undertaken. 182   See, eg Dable v Peisley [2009] NSWSC 772, but cf, eg Parker v Clarke [1960] 1 WLR 286 (Assizes); Schaefer v Schuhmann [1972] AC 572 (PC); Scheps v Cobb, Estate of Dagobert Scheps (decd) [2005] NSWSC 455. See also C Barton, ‘Contract – A Justifiable Taboo?’ in Probert (ed), Family Life and the Law: Under One Roof (n 85) for discussion of a contractual approach to family life. 183   See, eg MI Hall, ‘The Care Agreement: Transfer of Property in Exchange for the Promise of Care and Support’ (2002) 21 Estates, Trusts and Pensions Journal 209; J Long, ‘Caring by Contract: Care Arrangements for Older People’ in K Boele-Woelki, J Miles and JM Scherpe (eds), The Future of Family Property in Europe: Proceedings of the 4th Conference of the Commission on European Family Law (Cambridge, Intersentia, 2011). See Wells, ‘Testamentary Promises: A New Approach’ (n 129) ch 5 for a full analysis of the enforcement of testamentary promises via the law of contract. 184   Murphy v Rayner [2011] EWHC 1 (Ch) [69] (Deputy Judge Jeremy Cousins QC). 185   Maddison v Alderson (1883) 8 App Cas 467 (HL). See SJ Burridge, ‘A Metric Measurement of the Chancellor’s Foot’ [1982] Cambridge Law Journal 290 for a (now dated) discussion of the use of contract law, part performance, proprietary estoppel and constructive trusts in the kind of scenarios considered in this book. 186   Maddison v Alderson ibid 477.



1.4  Subject Matter of the Book 27

Although the requirements for the connection with a contract were subsequently relaxed,187 the doctrine of part performance in relation to contracts concerning land was abolished prospectively in England and Wales in 1989188 and is now of historical relevance only within this jurisdiction. Even if the doctrine remained active, however, it would still be difficult for many informal carers to point to a sufficiently certain arrangement. The difficulty is illustrated by the first instance decision in Jennings v Rice,189 a proprietary estoppel case involving care that produced an important Court of Appeal decision considered at length in chapter two. Thompson points out that it would have been open to the claimant to make submissions on the doctrine of part performance in addition to estoppel if some of the dealings between the parties occurred before the doctrine was abolished.190 In the event, however, Judge Weeks QC dismissed the claimant’s contractual claim on the grounds of uncertainty in relation to both the offer and the consideration, as well as a lack of intention to create legal relations. The same problem relating to the requirements of a contract occurs in Australia,191 where the doctrine of part performance continues to operate.192 Part performance is not, therefore, given further detailed consideration in the book, and claims involving facts to which the doctrine was previously applicable in England would now be argued under the doctrine of proprietary estoppel. 1.4.2  Property Law There have been a number of recent cases in England in which a carer has gained a remedy using the doctrine of proprietary estoppel, which can be invoked as the basis of a claim as well as a defence. In cases involving care, the doctrine operates on the basis of unconscionability in the face of a representation by the care recipient to the effect that the carer will receive an interest in her property. Where this is coupled with detrimental reliance on the part of the carer, he may be given a remedy. The appropriate remedy may be the value of the promised benefit or it may be something more modest.   Steadman v Steadman [1976] AC 536 (HL).   Law of Property (Miscellaneous Provisions) Act 1989, s 2, which came into force on 27 September 1989: Law of Property (Miscellaneous Provisions) Act 1989, s 5(3)–(4)(a). 189   Jennings v Rice [2001] WTLR 871 (Ch). 190   MP Thompson, ‘The Flexibility of Estoppel’ [2003] Conveyancer and Property Lawyer 225, 227. 191   See, eg Gors v Henderson [1998] WASC 273. 192   For a full account, see L Willmott, S Christensen, D Butler and B Dixon, Contract Law, 3rd edn (Melbourne, Oxford University Press, 2009) [11.335]–[11.395]. The Singapore Court of Appeal has confirmed that the doctrine continues to operate there: Joseph Mathew v Singh Chiranjeev [2010] 1 SLR 338. 187 188

28  Introduction A mechanism addressing ‘unconscionability of outcome’ due to the representation requirement, proprietary estoppel is considered in chapter two. Another major means of informally creating property rights in the domestic context,193 the common intention constructive trust, is also considered in that chapter. 1.4.3  Statutory Enforcement of Testamentary Promises In New Zealand, uniquely, non-contractual testamentary promises made broadly in return for services are statutorily enforceable as a result of the Law Reform (Testamentary Promises) Act 1949. The legislation, which is often invoked by carers, is considered in chapter three. The court has a wide discretion in determining the appropriate award. Reforms proposed by the New Zealand Law Commission, which could provide an unjust enrichment-style remedy even in the absence of a promise if implemented, are also evaluated. 1.4.4  Unjust Enrichment A carer may seek to argue that a care recipient has been unjustly enriched by the services he provided, and claim a remedy on that basis. Chapter four considers the limited potential for success of such claims in English law as it currently stands, alongside the more developed position in Canada. 1.4.5  Family Provision The book also considers whether a remedy can and should be supplied for carers out of a care recipient’s estate using a family provision statute. Chapter five concerns the eligibility of a ‘pure’ carer and the relevance of care provided in the context of a family provision claim both where there has been a promise of provision and where there has been no such prom193   This follows the preference of the majority in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 for a constructive trust analysis in the domestic context, as compared to the resulting trust founded on a contribution to the purchase price of the relevant property. Indeed, in the subsequent Supreme Court decision in Jones v Kernott it was said that: ‘The time has come to make it clear . . . that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the deposit (or indeed the rest of the purchase) in unequal shares’: [2011] UKSC 53, [2011] 3 WLR 1121 [25] (Lord Walker and Lady Hale).



1.5 Summary 29

ise. The jurisdictions that receive most attention in that chapter are England and Wales, where there is no specific recognition of carers, and New South Wales, where carers are specifically provided for by the ‘close personal relationship’ category of claimant. 1.4.6  Provision on Relationship Breakdown Much of the book concerns differences in the judicial treatment between, on the one hand, ‘pure’ carers and, on the other, unmarried cohabitants in a sexual relationship. The reason for this is that neither has a formal relationship with the defendant (or the person whose estate is the subject of a claim), and it can be difficult to distinguish between the two categories. Nevertheless, ‘pure’ carers were expressly excluded from the Law Commission’s proposed statutory scheme for the inter vivos redistribution of unmarried cohabitants’ property on relationship breakdown in England and Wales. The reasons for this approach are considered in chapter six, and it is contrasted with that adopted in other jurisdictions, in particular Australia. 1.4.7  Undue Influence Undue influence is distinct from all the other private law mechanisms considered in this book. It is a method by which an inter vivos ‘remedy’ already provided to a carer by the care recipient can subsequently be challenged on the basis that there is a relationship of influence between carer and care recipient and that the property transfer is inexplicable. 1.5 SUMMARY

This introductory chapter has sought to provide background information on carers in social policy, to justify the analysis of a carer’s legal position in the context of private law, and to outline the structure and content of the remainder of the book. The substantive analysis is undertaken in the following chapters. Chapters two and three discuss scenarios where there is a promise or indication made by the care recipient in the context of property law and testamentary promise legislation, before chapter four considers potential claims in unjust enrichment. Statutory family provision on death and inter vivos provision for carers are addressed in chapters five and six respectively, and chapter seven analyses the potential for a benefit in fact provided to a carer to be challenged. The book is concluded in chapter eight.

2 Property Law Claims: Proprietary Estoppel and Constructive Trusts

T

2.1  INTRODUCTION AND BACKGROUND

HIS IS THE first chapter primarily concerned with the extent to which the law does and could provide a remedy for an informal carer in circumstances where the care recipient has made some indication that the carer will receive a benefit in return for his caring efforts. As explained in chapter one, the phrase ‘unconscionability of dealing’ is used as a shorthand method of describing situations of this type. The discussion of unconscionability of dealing begins with proprietary estoppel, a property law doctrine, which may provide a remedy for the informal carer in certain circumstances.1 In earlier cases on estoppel, the judiciary often gave carers and similar claimants little more than verbal sympathy when they attempted to rely on the doctrine to enforce informal promises,2 making ‘something of a meal’ of such claims.3 One reason for this was the perceived importance of preserving the defendant’s testamentary freedom notwithstanding the fact that she made a representation to the claimant regarding inheritance.4 Attitudes have changed and there is now increasing judicial recognition of the importance of the doctrine for such carers.5 Lord Walker has said that ‘[i]n modern [estoppel] authorities the claimant’s case is usually 1   S Barkehall Thomas, ‘Families Behaving Badly: What Happens when Grandma gets Kicked Out of the Granny Flat?’ (2008) 15 Australian Property Law Journal 154 considers the alternative (and in some ways converse) scenario where an older person brings an estoppel claim (or a claim based on a joint venture) against a younger family member following a promise that the elderly person would receive a home (and often care) for life. Jones v Jones [2001] NICH 2 is an interesting variation on this scenario. 2   S Nield, ‘“If You Look After Me, I will Leave You my Estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (2000) 20 Legal Studies 85. 3   MP Thompson, ‘Estoppel: A Return to Principle’ [2001] Conveyancer and Property Lawyer 78, 78. 4   See, eg Gillett v Holt [1998] 2 FLR 470 (Ch) 484 (Carnwath J). 5   This is in spite of the fear generated by Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752 about the future application of estoppel in such cases: see B McFarlane and A Robertson, ‘The Death of Proprietary Estoppel’ [2008] Lloyd’s Maritime and Commercial Law Quarterly 449.



2.1  Introduction and Background 31

founded . . . on [his] personal assistance to the defendant’,6 and the leading modern case concerned an unpaid farm worker.7 The aim of this chapter is to assess the overall utility of estoppel as a mechanism for remunerating the informal carer. Broadly, proprietary estoppel is potentially useful where a property owner suggests that her carer has or will receive an interest in her property in return for his efforts (often in the form of provision in a will), the carer provides services, and the care recipient fails, whether by accident or design, to fulfil the promise. The need for an indication of reward could be thought to place estoppel firmly within the ‘unconscionability of dealing’ category, although recent cases may have rendered the issue less clear-cut than it was previously.8 This chapter begins by discussing the elements of proprietary estoppel as they apply in a care context, with section 2.2 addressing the need for a representation, reliance, detriment and unconscionability. The discussion proceeds in section 2.3 to examine how the estoppel equity can be given effect once proven. Section 2.4 then discusses controversies surrounding the normative justification for the doctrine’s operation. Finally, the constructive trust, and its connection with proprietary estoppel, is addressed in section 2.5. Such a trust, specifically when it is based on the ‘common intention’ of the parties, is often cited by unmarried cohabitants seeking a beneficial entitlement in the family home on relationship breakdown. As becomes clear, trends in the case law make it more likely that a carer will succeed with an argument based on estoppel rather than the constructive trust, particularly in testamentary cases. Throughout the chapter, comparison is made with the broader estoppel doctrine in evidence in Australia. It is argued that although proprietary estoppel was not originally designed to provide a remedy in care situations, it facilitates a just solution to many of them. Inevitably, however, the doctrine suffers from the limitations associated with all mechanisms addressing ‘unconscionability of dealing’, and concerns regarding its illegitimacy and uncertainty suggest that it is not the ideal mechanism to do even that much.

6   R Walker, ‘Which Side “Ought to Win”? – Discretion and Certainty in Property Law’ [2008] Singapore Journal of Legal Studies 229, 234. 7   Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776. See B Sloan, ‘Estop Me if You Think You’ve Heard It’ [2009] Cambridge Law Journal 518. 8   See especially Thorner v Major ibid.

32  Property Law Claims 2.2  THE ELEMENTS OF PROPRIETARY ESTOPPEL

2.2.1  General Nature and Definition 2.2.1.1  The Capabilities of the Doctrine Proprietary estoppel, an equitable doctrine, originated as a method of preventing a property owner from asserting her strict legal rights where it was unconscionable for her to do so, classically because another person had improved the owner’s property as a result of her encouragement.9 While Lord Walker maintains that the doctrine is still concerned with correcting injustice that arises from the ‘vagaries of human conduct’,10 he also recognises that ‘assistance’ cases, many of which involve care, have become more common than those based on physical improvement of land.11 As Gray and Gray point out, moreover, ‘the doctrine usually has the indirect (but more positive) effect of creating rights on behalf of the successful claimant’,12 notwithstanding the formalities that are generally required to create such rights in land.13 Indeed, most of the authorities to which this chapter refers involve claimants asserting a right over property belonging to another on the basis of work done for the owner. That said, the potential for estoppel to create property rights in a wide range of cases was cast into doubt by the remarks of Lord Scott in Cobbe v Yeoman’s Row Management Ltd.14 He suggested that proprietary estoppel, which he characterised as a mere sub-species of promissory estoppel, could prevent only the denial of a point of fact or law standing in the way of an existing proprietary claim. To some commentators, this implied that an estoppel claimant attempting to invoke an agreement that was unenforceable due to non-compliance with formalities, could preclude the defendant only from denying the existence of that unenforceable arrangement.15 Lord Scott did not deal specifically with the ‘assistance’ cases identified extra-judicially by Lord Walker, but Sir Terence Etherton said it was not clear that those cases could stand as a result of Cobbe.16   See, eg Inwards v Baker [1965] 2 QB 29 (CA).   Walker, ‘Which Side “Ought to Win”?’ (n 6) 230.   ibid 234. 12   K Gray and SF Gray, Elements of Land Law, 5th edn (Oxford, Oxford University Press, 2009) [9.2.2]. 13   See, eg the requirements imposed by the Law of Property Act 1925, ss 52–54. This issue is discussed further in section 2.4 below. 14   Cobbe v Yeoman’s Row Management Ltd (n 5). 15   See, especially McFarlane and Robertson, ‘The Death of Proprietary Estoppel’ (n 5). 16   T Etherton, ‘Constructive Trusts and Proprietary Estoppel: The Search for Clarity and Principle’ [2009] Conveyancer and Property Lawyer 104. 9

10 11



2.2  The Elements of Proprietary Estoppel 33

In a subsequent House of Lords case, Lord Walker described the pessimistic interpretation of Cobbe as ‘rather apocalyptic’,17 although he was forced to admit that he had ‘some difficulty’ with the characterisation of proprietary estoppel as a sub-species of its promissory equivalent.18 Lord Scott’s observations have retrospectively been confined to the context in which they were made,19 which specifically involved a commercial arrangement binding in honour only, the precise contractual terms of which were yet to be negotiated. Of course, it is the alternative ‘domestic’ context with which this book is concerned. As discussed in section 2.2.1.6, however, considerations of ‘context’ are liable to cause difficulty. 2.2.1.2  Basic Principles In Thorner v Major,20 Lord Walker appeared to accept Simon Gardner’s claim that: ‘[t]here is no definition of proprietary estoppel that is both comprehensive and uncontroversial.’21 On the Law Commission’s account, an estoppel claim arises where: The owner of land, A, in some way leads or allows the claimant, B, to believe that he has or can expect some kind of right or interest over A’s land. To A’s knowledge, B acts to his detriment in that belief. A then refuses B the anticipated right or interest in circumstances that make that refusal unconscionable.22

Lord Walker pinpointed the common features from all various attempts at a definition.23 These are a representation, reliance on it by the claimant and consequential detriment suffered by that claimant. Nevertheless, the definition of estoppel is open to question throughout this chapter. 2.2.1.3  The Relevant Property in England and Australia Contrary to the Law Commission’s suggestion, it appears that the doctrine of proprietary estoppel is not limited to the assertion of interests in land. Although many cases involve such interests, in Strover v Strover24 Hart J was content to apply the doctrine even to the proceeds of a life assurance policy. That said, decisions such as this have not prevented the present author of Treitel on the Law of Contract from regarding the question   Thorner v Major (n 7) [31].   ibid [67]. 19   See, eg ibid [97]–[100] (Lord Neuberger). 20   ibid [29]. 21   See now S Gardner, An Introduction to Land Law, 2nd edn (Oxford, Hart Publishing, 2009) 101. 22   HM Land Registry and Law Commission, Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law Com No 271, 2001) [5.29]. 23   Thorner v Major (n 7) [29]. 24   Strover v Strover [2005] EWHC 860 (Ch), [2005] WTLR 1245. 17 18

34  Property Law Claims as an open one,25 and Lord Walker considers claims where there is no land at issue to be exceptional.26 Because of the apparent unification of proprietary and promissory estoppel in Australia, a link to property is not necessarily required for an equitable estoppel claim in that jurisdiction. Under the broader doctrine, an assumption by the claimant that ‘a particular legal relationship’ existed or would exist is sufficient.27 The justification for unification was expressed by Brennan J in Waltons Stores (Interstate) Ltd v Maher, when he asked: If it be unconscionable for an owner of property in certain circumstances to fail to fulfil a non-contractual promise that he will convey an interest in the property to another, is there any reason in principle why it is not unconscionable in similar circumstances for a person to fail to fulfil a non-contractual promise that he will confer a non-proprietary legal right on another?28

Whatever the normative force of this argument, Lord Neuberger has expressed doubts about whether unification has actually occurred,29 and Barkehall Thomas identifies a ‘tendency to continue to treat proprietary estoppel as distinct’ in spite of the alleged amalgamation.30 The apparent divergence between the English and Australian conceptions of the doctrine in this respect may not, therefore, be as marked as it first appears. 2.2.1.4  The Application of the Requirements Another definitional qualification relates to Robert Walker LJ’s remark that the doctrine ‘cannot be treated as subdivided into three or four watertight categories’, whatever a formal definition might suggest,31 and no doubt some scholars would organise the discussion in this chapter differently. Moreover, each case must rest ‘on its own merits’,32 particularly since the relevant conduct must be unconscionable in the round before a remedy can be granted. Before the decision in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd,33 described as ‘perhaps the most signifi  E Peel, Treitel on the Law of Contract 13th edn (London, Sweet & Maxwell, 2011) [3.129].   Walker, ‘Which Side “Ought to Win”?’ (n 6) 232. Lord Walker confirmed that the property in question was ‘usually land’ in Thorner v Major (n 7) [61]. 27   Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, (1988) 164 CLR 387, 428 (Brennan J). 28   ibid 426 (Brennan J). This conception of promissory estoppel may itself be broader than the prevailing conception in England, which requires a pre-existing relationship between the parties: see, eg Thorner v Major (n 7) [61] (Lord Walker). For a general discussion see E Cooke, The Modern Law of Estoppel (Oxford, Oxford University Press, 2000). 29   D Neuberger, ‘Thoughts on the Law of Equitable Estoppel’ (2010) 84 Australian Law Journal 225, 237–38. 30   Barkehall Thomas, ‘Families Behaving Badly: What Happens when Grandma gets Kicked Out of the Granny Flat?’ (n 1) 168 fn 55. 31   Gillett v Holt [2001] Ch 210 (CA) 225. 32   MP Thompson, ‘The Flexibility of Estoppel’ [2003] Conveyancer and Property Lawyer 225, 236. 33   Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 (Ch). 25 26



2.2  The Elements of Proprietary Estoppel 35

cant decision on proprietary estoppel in the twentieth century’,34 the criteria for estoppel were notably strict and the cases placed in relatively demarcated categories as a result of the Wilmott v Barber35 probanda.36 In Taylors Fashions, on the other hand, Oliver J identified in the case law ‘a much wider equitable jurisdiction to interfere in cases where the assertion of strict legal rights is found by the court to be unconscionable’.37 The renewed focus on unconscionability heralded by Taylors Fashions is likely to benefit the carer, despite doing little for the cause of certainty. That said, in Cobbe Lord Scott was anxious to avoid any suggestion that unconscionable behaviour was itself sufficient to support an estoppel claim.38 Finally, Bibby v Stirling suggests that weaknesses in one element of the claim can be compensated for by strengths in another.39 For example, a vague statement could be sufficient when accompanied by a great deal of detriment, and only a small amount of detriment may be necessary where an unambiguous representation has been made. Despite this apparent flexibility, Lord Walker is adamant that the decision on whether a proprietary estoppel claim has been made out is not a discretionary one, unlike the decision on the remedy to be granted.40 In Cobbe, he emphasised that estoppel ‘is not a sort of joker or wild card to be used whenever the Court disapproves of the conduct of a litigant who seems to have the law on his side’.41 Even if the basic requirements can be agreed upon, Lord Scott has said that a representation, reliance and detriment are necessary but not always sufficient to justify a remedy in any given case.42 Each of these elements is subject to further qualifying criteria, which are considered in the following subsections. 2.2.1.5  Classifying the Cases The following elaboration of the ingredients of an estoppel claim relies largely on authorities involving carers, but it is sometimes necessary to delve into other types of case. Gray and Gray divide the cases into those involving ‘imperfect gifts’, ‘common expectations’ and ‘unilateral mistakes’. Although they admit that each category represents a mere difference   Cooke, The Modern Law of Estoppel (n 28) 48.   Wilmott v Barber (1880) 15 Ch D 96. 36   For a detailed discussion, see Gray and Gray, Elements of Land Law (n 12) [9.2.18]– [9.2.36]. 37   Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (n 33) 147. 38   Cobbe v Yeoman’s Row Management Ltd (n 5) [16]. 39   Bibby v Stirling (1998) 76 P & CR D36 (CA). 40   Walker, ‘Which Side “Ought to Win”?’ (n 6). 41   Cobbe v Yeoman’s Row Management Ltd (n 5) [46]. 42   Thorner v Major (n 7) [15]. 34 35

36  Property Law Claims in emphasis between the elements and that there is now more of a unified doctrine of estoppel,43 in Cobbe Lord Walker adopted the taxonomy and warned that ‘synthesis and unification, however desirable as objectives, have their dangers’.44 Nevertheless, the fact that carer cases span all three categories limits the usefulness of the categories in structuring the present discussion, and so each element is dealt with in turn. The importance of the context in which a particular claim arises as regards the application of estoppel principles is considered in section 2.2.1.6 below. 2.2.1.6  The Importance of Context The nature of property law might be thought to mean that proprietary estoppel, as a rule, applies equally between strangers, family members, carers and care recipients. Nevertheless, the courts have recently shown a significant willingness to take account of the context in which a purported estoppel claim has arisen. Contextual factors permeate the evaluation of all the elements of the doctrine.45 In Thorner v Major, Lord Neuberger emphasised that the relationship between the parties was ‘familial and personal’.46 He used this fact to justify the differing reasoning of a similarly-constituted House47 in Cobbe v Yeoman’s Row. Cobbe, as noted above, was a failed estoppel claim relating to an arrangement between two commercial parties dealing at arm’s length. Although the contexts were undoubtedly an important factor, it is not necessarily sufficient to justify the differences between the general remarks on estoppel in the two cases,48 and Lord Neuberger has himself admitted that the domestic/commercial dichotomy ‘may well not be satisfactory’.49 Nevertheless, the distinction was noted in Whittaker v Kinnear, where Bean J opined that ‘it is the nature of the parties’ dealings, not the nature of the property, which determines whether a case is to be regarded as commercial or domestic’.50   Gray and Gray, Elements of Land Law (n 12) [9.2.18].   Cobbe v Yeoman’s Row Management Ltd (n 5) [48]. See also J Mee, ‘Proprietary Estoppel, Promises and Mistaken Belief’ in S Bright (ed), Modern Studies in Property Law, Vol 6 (Oxford, Hart Publishing, 2011). 45   Henry v Henry [2010] UKPC 3, [2010] 1 All ER 988 [55] (Sir Jonathan Parker, giving the advice of the Board). 46   Thorner v Major (n 7) [97]. 47   ibid [96]–[100]. 48   See B Sloan, ‘Proprietary Estoppel: Recent Developments in England and Wales’ (2010) 22 Singapore Academy of Law Journal 110; N Hopkins, ‘The Relevance of Context in Property Law: A Case for Judicial Restraint?’ (2011) 31 Legal Studies 175 and Mee, ‘Proprietary Estoppel, Promises and Mistaken Belief’ (n 44) 192–97 for further discussion of this issue. See also Crossco No 4 Unlimited v Joram Ltd [2011] EWCA Civ 1619, [2012] 1 P & CR 16 [85]–[86] (Etherton LJ) for a summary of the justifications of the dichotomy in relation to the constructive trust. 49   Neuberger, ‘Thoughts on the Law of Equitable Estoppel’ (n 29) 233. 50   Whittaker v Kinnear [2011] EWHC 1479 (QB), [2011] 2 P & CR DG20 [32]. 43 44



2.2  The Elements of Proprietary Estoppel 37

The significance of context can also be seen in the many recent decisions specifically involving conjugal cohabitants and carers. It is difficult to draw a distinction between these categories, since they often overlap considerably. The situation in Greasley v Cooke is a perfect example.51 Ms Cooke originally moved into a widower’s house as a maid, but eventually lived as the partner of one of his sons, while continuing to care for the widower’s mentally ill daughter. Another distinction that could be made is between the different types of work performed by claimants in estoppel cases. The same principles are applied to cases involving more commercial work, for example the farm labouring performed by the claimants in Thorner v Major and Gillett v Holt,52 and to situations involving more personal care. As with the cohabitant/carer distinction, this is not surprising, since the types of work performed by the same claimant can vary over time. For example, in Jennings v Rice,53 the claimant was originally engaged as a gardener by the testatrix, but his role progressed to running errands and helping her with more personal tasks such as dressing and she eventually became highly dependent on him. The particular issues faced by carers in proving each element as compared with other claimants are examined in the relevant part of the discussion. 2.2.2  The Representation Requirement 2.2.2.1  The Importance of a Representation and its Clarity In order to found a proprietary estoppel claim, some form of representation or assurance must have been given to the claimant in respect of the defendant’s property.54 A baseless expectation on the part of the claimant is insufficient, and therefore the court would not entertain an argument that no one would sensibly undertake certain work unless they expected to be rewarded for it.55 Consequently, a mere moral claim to a remedy is outside the bounds of proprietary estoppel.56 In Shirt v Shirt, Judge Purle QC was conscious that he was ‘not [t]here to award a proprietary interest   Greasley v Cooke [1980] 1 WLR 1306 (CA). See also Mulholland v Kane [2009] NICh 9.   Gillett v Holt (n 31).   Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501. 54   The relevant property is discussed in section 2.2.2.3 below. 55   cf the discussion of risk-taking and free acceptance in the unjust enrichment context in ch 4. 56   See, eg Lloyd LJ’s acceptance in the Court of Appeal in Thorner that the claimant had a ‘strong moral claim’ to the property in question ([2008] EWCA Civ 732, [2008] 2 FCR 435 [75]). Although the House of Lords overturned the Court of Appeal’s decision that there was no sufficiently clear representation, this nevertheless illustrates the distinction between the moral claim of the applicant and his ability to cite a representation. 51 52 53

38  Property Law Claims for good behaviour or for worthy conduct’.57 That said, the extent to which a carer deserves to have his expectation fulfilled will affect both the assessment of unconscionability and the exercise of the remedial discretion. Moreover, the strictness of the requirement has been tempered by the resurgence of unconscionability in the round, and some cases leave doubts about the extent to which a representation is truly required. In Taylors Fashions, for example, Oliver J spoke of a property owner’s unconscionability in denying what she has ‘allowed or encouraged’ (emphasis added) the other party to assume about his property rights.58 This suggests that conduct reasonably leading to an expectation, or a failure by the property owner to correct an assumption of which she has knowledge, might be enough to generate an estoppel.59 Such cases of acquiescence do not, however, constitute exceptions to the assurance requirement. Rather, it is the ‘standing by in silence’ that ‘serves as the element of assurance’.60 A case that has caused some difficulty in this respect is Taylor v Dickens,61 where Judge Weeks QC did not consider it unconscionable for an elderly lady deliberately to avoid telling the claimant that she had changed her mind about leaving property to him. Predictably, the decision has since been doubted,62 and it seems that the result was heavily influenced by the judge’s sympathy for the testatrix.63 In any event, Taylor was not a true ‘acquiescence’ case since the deceased had originally made a promise to the claimant, and was silent only as to her change of mind. Lord Walker has implied that acquiescence constitutes a representation only when the detriment in question results in improvements to land,64 an implication accepted by Lewison J in Thompson v Foy.65 That said, even Lloyd LJ, whose strict view of the representation requirement in Thorner v Major was later rejected by the House of Lords, refused to rule out the enforcement of a testamentary ‘promise’ that was made by conduct alone.66 57   Shirt v Shirt [2010] EWHC 3820 (Ch) [33]. His overall decision on estoppel was upheld by the Court of Appeal: [2012] All ER (D) 212 (Mar). 58   Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (n 33) 152. 59   See, especially, Ramsden v Dyson (1866) LR 1 HL 129, 140–41 (Lord Cranworth). For criticism of the courts’ approach to acquiescence as a basis for estoppel, see KFK Low, ‘Nonfeasance in Equity’ (2012) 128 Law Quarterly Review 63. For a discussion of the extent to which estoppel merely facilitates consensual transfers of property rights, see C Rotherham, Proprietary Remedies in Context: A Study in the Judicial Redistribution of Property Rights (Oxford, Hart Publishing, 2002) ch 13. 60   Thorner v Major (n 7) [55] (Lord Walker). 61   Taylor v Dickens [1998] 1 FLR 806 (Ch). 62   Gillett v Holt (n 31) 227 (Robert Walker LJ). 63   See especially the remarks at [1998] FLR 806 (Ch) 822. 64   Thorner v Major (n 7) [55]. cf Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, where the House of Lords discussed (but dismissed for various reasons) the defendant’s invocation of proprietary estoppel by virtue of the claimant’s failure to enforce his share of the copyright in a song. 65   Thompson v Foy [2009] EWHC 1076 (Ch), [2010] 1 P & CR 16 [90]. 66   Thorner v Major (CA) (n 56) [54].



2.2  The Elements of Proprietary Estoppel  39

Thorner v Major did not involve silence as such, but was a claim against the estate of a ‘man of few words’67 by an unpaid farm worker. Peter Thorner had handed the claimant, David Thorner, documents relating to life insurance policies with the remark ‘that’s for my death duties’.68 Given Peter’s characteristics, these and other indirect remarks were deemed by the trial judge to be sufficient to constitute relevant representations. The Court of Appeal, while accepting the judge’s findings of fact, disagreed with his conclusion. It was held that an assurance had to be ‘clear and unequivocal’69 and ‘intended to be relied on’,70 especially in cases involving alleged testamentary promises. According to Lloyd LJ, Peter’s actions amounted to ‘at most, a statement of present intention’ by which Peter was not bound.71 Most members of the House of Lords were at least sceptical about the requirements outlined by Lloyd LJ,72 with Lords Walker73 and Rodger74 opining that the representation must merely be ‘clear enough’ in the circumstances of the case and for the parties involved. Lord Hoffman, meanwhile, considered it sufficient that representations were intended to be ‘taken seriously’,75 and doubted whether the defendant even needed to be aware of the claimant’s specific acts of reliance. For his part, Lord Neuberger emphasised that it was reasonable for David to rely on Peter’s actions regardless of what Peter in fact intended.76 Susan Barkehall Thomas assumes that, for an Australian estoppel claim, the representations must be intended to be relied upon and that the representor must be aware of the claimant’s reliance.77 Indeed, in Vukic v Luca Grbin, Estate of Zvonko Grbin Brereton J expressed the view that: ‘[i]t is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation.’78 In England, however, these propositions are doubtful following Thorner. After almost 30 years of unremunerated work, the House of Lords allowed David to succeed to Peter’s farm through proprietary estoppel.   Thorner v Major [2007] EWHC 2422 (Ch), [2008] WTLR 155 [94].   ibid [94].   Thorner v Major (CA) (n 56) [74] (Lloyd LJ). See B Sloan, ‘Estoppel and the Importance of Straight Talking’ [2009] Conveyancer and Property Lawyer 154. 70   Thorner v Major (CA) (n 56) [74] (Lloyd LJ). 71   ibid [72]. 72   cf Lord Scott in Thorner v Major (n 7) [18], albeit agreeing that the requirement was met in this case. 73   ibid [26]. 74   ibid [56]. 75   ibid [5]. 76   ibid [78]. 77   Barkehall Thomas, ‘Families Behaving Badly: What Happens when Grandma gets Kicked Out of the Granny Flat?’ (n 1). 78   Vukic v Luca Grbin, Estate of Zvonko Grbin [2006] NSWSC 41 [27]. 67 68 69

40  Property Law Claims Following Thorner, appellate courts are likely to be particularly anxious to defer to the trial judge’s findings on the content and meaning of representations. In Thompson v Foy, Lewison J admitted that ‘no witness [had] been able to point to a specific conversation or to specific words spoken or written’ by the alleged representors.79 Nevertheless, he was content to infer from other evidence that a sufficient understanding existed, and concluded that the understanding in question could ‘only have arisen’ following something said by the property owners.80 Similarly, a representation need not be a one-off event, and a series of events that might be insignificant in isolation can form a pattern sufficient to constitute a relevant assurance.81 Decisions such as Thorner can only aid carers in their proprietary estoppel claims, and it is interesting that David Thorner’s case has come to be regarded as a strong one in spite of the obliqueness of the representations.82 Caution must nevertheless be exercised as regards imputing intentions to vulnerable individuals who may lack full awareness of the consequences of their actions.83 The representation requirement still defeats the claim of a carer who continues to perform services for a recipient who emphatically tells him from the beginning that he will not be remunerated for his efforts,84 as well as those to whom nothing approaching a representation is ever made, for whatever reason. The result is that some of the most altruistic carers will go away empty-handed, but that is an inevitable feature of a mechanism that addresses unconscionability of dealing. 2.2.2.2  Who Must Make the Representation? Since the root of an equitable claim is unconscionability, it might be assumed that the defendant in a proprietary estoppel action must be both the property owner and the person who has acted unconscionably (or her estate). Surprisingly, there is some flexibility here, which could benefit carers. First, following Greasley v Cooke,85 it is possible that a relative of the property owner can make a relevant representation, although it seems   Thompson v Foy (n 65) [92].   ibid [92]. 81   Thorner v Major (n 7) [60] (Lord Walker). 82   In Suggitt v Suggitt [2011] EWHC 903 (Ch), [2011] 2 FLR 875, the judge opined that the case before him was ‘not a Thorner v Major case’ because the facts before him were ‘not nearly as clear cut as they were there in that case’ ([53] (Judge Kaye QC)). The claim nevertheless succeeded. 83   See the concerns of Lord Neuberger about imputing intentions when applying property law doctrines in a domestic context: Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [126]– [127]. cf, generally Jones v Kernott [2011] UKSC 53, [2011] 3 WLR 1121. 84   This situation is analogous to Gillies v Keogh [1989] 2 NZLR 327. 85   Greasley v Cooke (n 51). 79 80



2.2  The Elements of Proprietary Estoppel 41

that the owner must have some awareness of it and have given it at least tacit assent.86 This qualification was confirmed by the Court of Appeal in Pleming v Hampton.87 In that case, the defendant’s mother wrote to the claimants promising them a strip of her daughter’s land after the claimants agreed to cooperate with an extension. She did so without her daughter’s permission. Chadwick LJ, with whom Maurice Kay LJ agreed, rejected the proprietary estoppel claim on the basis that: ‘No authority was put before [them] to support the proposition that the owner of land is obliged to give effect to a promise made by someone who is not the owner of that land without authority or permission.’88 As a result, if a representation is made by a relative of the care recipient who has no interest in the property, a carer will have no remedy if the recipient lacks knowledge of the representation, and may have difficulty in bringing a claim if the care recipient has not authorised or ratified it. Secondly, however, there is Australian authority that the representor need not necessarily have an interest in the property at the time of the representation, provided she subsequently acquires one,89 and this possibility was mooted by the House of Lords in Thorner.90 Moreover, in Watson v Goldsbrough, it was decided that an estoppel could arise from representations made by mere licensees of the property in question, if those licensees later acquired the freehold.91 According to Browne-Wilkinson V-C, the estoppel was ‘fed’ and became binding when the licensees acquired the legal estate.92 It is therefore possible that the carer could have a claim against the relative in the above example if that relative later inherited the property, and this could provide a measure of justice where the property owner is not minded to make a representation herself.93 2.2.2.3  Representations and Property According to Lord Walker in Thorner, the representation ‘should relate to identified property owned (or, perhaps, about to be owned) by the defendant’.94 In the earlier commercial case of Cobbe, moreover, Lord Scott repeatedly emphasised the need for a representation in respect of ‘a certain interest’ in land.95 It is therefore necessary to consider the extent to   Matharu v Matharu [1994] 2 FLR 597 (CA).   Pleming v Hampton [2004] EWCA Civ 446. 88   ibid [35]. 89   Riches v Hogben [1986] 1 Qd R 315. 90   Thorner v Major (n 7) [61] (Lord Walker). 91   Watson v Goldsbrough [1986] 1 EGLR 265 (CA). 92   ibid 267. 93   See also Murphy v Rayner [2011] EWHC 1 (Ch) [354]–[358] (Deputy Judge Jeremy Cousins QC) for a discussion of how an estoppel claim might be given effect where the property in question is owned by a company controlled by the representor. 94   Thorner v Major (n 7) [61]. 95   Cobbe v Yeoman’s Row Management Ltd (n 5) [18]–[21]. 86 87

42  Property Law Claims which the representation must pertain to particular property. Although this may be unnecessary in Australia, the basic rule in English law, as formulated by Judge Norris QC in Lissimore v Downing, is that the defendant’s representation ‘must relate to some specific property, or to some part of [the defendant’s] property which is objectively ascertainable’.96 The judge was concerned that to hold otherwise would conflate the process of satisfying the equity with its identification. Nevertheless, he was prepared to accept that estoppel-generating representations could relate to the entirety of the representor’s property as well as specific items, and implied that a purposive approach would be adopted. In Thorner, the House of Lords confirmed that ‘an unspecific promise of “financial security”’,97 such as that given in Layton v Martin,98 would be insufficient. It has been suggested99 that a promise relating to a residuary estate, such as those made to the claimant step-daughter in Re Basham (decd),100 may no longer be specific enough in itself.101 Lord Walker, however, declined to take a firm view on whether Re Basham had been correctly decided.102 Moreover, it would be illogical for the residue to be sufficiently certain to form the subject matter of a valid express testamentary trust103 and yet insufficiently so to qualify as a valid estoppel representation. In Lissimore, representations that the claimant would be ‘Lady of the Manor’, that she would be treated like the defendant’s other girlfriends or even that ‘all this’ would be hers did not bind all of the defendant’s property and were not ‘expressed in terms which enable[d] any objective assessment to be made of what is being promised’.104 Nevertheless, similar representations were held to enable an objective assessment in Jennings v Rice, where an estoppel claim succeeded against a care recipient’s estate despite the fact that she ‘perhaps deliberately, couched her promises in non-specific terms’,105 such as ‘this will all be yours one day’.106 Moreover, in the particular circumstances of Thorner, Peter’s oblique representations were said to leave ‘no doubt as to what was the subject of the assurance’.107 The differing conclusions of the factual inquiries in these cases did not prevent Lord Walker, who gave judgments in both Thorner and Jennings,   Lissimore v Downing [2003] EWHC B1 (Ch), [2003] 2 FLR 308 [12].   Thorner v Major (n 7) [63] (Lord Walker). 98   Layton v Martin [1986] 2 FLR 227 (Ch). 99   MacDonald v Frost [2009] EWHC 2276 (Ch), [2009] WTLR 1815 [19] (Judge Geraldine Andrews QC). 100   Re Basham (decd) [1986] 1 WLR 1498 (Ch). 101   cf Dable v Peisley [2009] NSWSC 772. 102   Thorner v Major (n 7) [63]. 103   See J Penner, The Law of Trusts, 7th edn (Oxford, Oxford University Press, 2010) [7.60] for discussion. 104   Lissimore v Downing (n 96) [18] (Judge Norris QC). 105   Jennings v Rice (n 53) [10]. 106   ibid [9]. 107   Thorner v Major (n 7) [95] (Lord Neuberger). 96 97



2.2  The Elements of Proprietary Estoppel 43

from bestowing extra-judicial praise on Judge Norris QC’s approach in Lissimore.108 This apparent inconsistency is not satisfactory, but it does reinforce the importance of the factual matrix. Moreover, a limited amount of uncertainty cannot be an impediment to an estoppel claim, since such an approach would render it indistinguishable from a straightforward contractual claim.109 Indeed, Lord Neuberger has said that ‘[i]t is inimical to the doctrine of equitable estoppel that it should be forced into . . . a straightjacket’ as regards the clarity with which the promised proprietary interest was expressed.110 Surprisingly, however, where an oral arrangement does possess sufficient certainty to constitute a valid contract disposing of a particular interest in land if it were in writing, it seems that estoppel may not be available because of the specific wording of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989,111 which provides that a contract for the disposition of an interest in land must be in writing.112 Extra-judicially, Lord Neuberger has branded this situation ‘perverse’ and opined as a result that section 2 cannot bar a claim in equity.113 Martin Dixon, on the other hand, characterises ‘failed contract’ cases as situations in which it is particularly difficult to establish that there has been a ‘“formality assurance”, that is one that the [promised] right will ensue even if the formalities necessary to convey that right are not complied with’.114 He regards such an assurance as essential if there is to be sufficient unconscionability to generate an estoppel.115 Since proprietary estoppel is by definition a property law doctrine, there must be some limit on the circumstances in which it can apply, and uncertainty is likely to affect the satisfaction of the equity if not its establishment.116 Gray and Gray address some of the apparent inconsistencies in the level of certainty required by opining that although the assurance of the entitlement must be certain, its nature or quantum need not be.117 This is reflected in Lord Walker’s distinction, drawn in Cobbe, between ‘intangible legal rights’ and ‘the tangible property which [the claimant] expects   Walker, ‘Which Side “Ought to Win”?’ (n 6).   Thompson, ‘The Flexibility of Estoppel’ (n 32).   Neuberger, ‘Thoughts on the Law of Equitable Estoppel’ (n 29) 231. See also Whittaker v Kinnear (n 50) where Bean J relied on the obiter nature of Lord Scott’s remarks in Cobbe to hold that ‘proprietary estoppel in a case involving a sale of land has survived the enactment of s 2 of the 1989 Act’ ([30]). 111   See, eg Cobbe v Yeoman’s Row Management Ltd (n 5) [29] (Lord Scott). 112   See section 2.4.2.2 below. 113   Neuberger, ‘The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ [2009] Cambridge Law Journal 537, 546. 114   M Dixon, ‘Confining and Defining Proprietary Estoppel: The Role of Unconscionability’ (2010) 30 Legal Studies 408, 417. 115   See further section 2.4.2.3 below. 116   See section 2.3 below. 117   Gray and Gray, Elements of Land Law (n 12) [9.2.40]. 108 109 110

44  Property Law Claims to get’.118 Lord Neuberger has also spoken of two different types of uncertainty in this respect.119 Any certainty requirement is likely to preclude some carers from claiming a remedy, even if many care recipients will possess property about which they can make a representation. Nevertheless, such a requirement does protect the recipient from arbitrary deprivation of her property, or preserve her testamentary freedom as the case may be. The nature of the property to which a representation relates will often change between the time when an assurance is made and the time at which the claimant seeks a remedy. This is particularly true in cases involving farms or other large assets. In Thorner, the House of Lords held that such changes could affect the size of the remedy awarded but refused to accept that they reduced the quality of the representation provided there was ‘still an identifiable property’.120 Lord Walker saw ‘no reason to doubt’ that both parties understood Peter’s assurance to relate to ‘whatever the farm consisted of at Peter’s death’.121 Lord Scott was of the view that an estoppel claim would probably succeed even if the original asset had been alienated.122 In spite of the alleged fusion of estoppel doctrines in Australia, a more rigorous approach was taken by the Supreme Court of New South Wales in Weeks v Hrubala.123 In that case, Young CJ in Equity Division asked a series of questions about the precise nature of the interest promised124 and concluded that he ‘would have had great difficulty in working out what the promise was’.125 On the other hand, in Sullivan v Sullivan, Hodgson JA pragmatically opined that: [I]f there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit.126

2.2.2.4  Representations, Revocability and Conditionality The revocability of an assurance, once made, is a key issue. As we have seen, in Taylor v Dickens,127 Judge Weeks QC decided that a representor   Cobbe v Yeoman’s Row Management Ltd (n 5) [68].   Thorner v Major (n 7) [94].   ibid [9] (Lord Hoffman). 121   ibid [62]. 122   ibid [18]. cf the ability for an estoppel to bind third party recipients of the relevant property, discussed at section 2.3.1 below. 123   Weeks v Hrubala [2008] NSWSC 162. 124   ibid [37]–[38]. 125   ibid [37]. 126   Sullivan v Sullivan [2006] NSWCA 312, [2008] ALMD 312 [85]. 127   Taylor v Dickens (n 61). 118 119

120



2.2  The Elements of Proprietary Estoppel 45

was free to change her mind even after detriment had been incurred. The judge held that she had not promised never to change her will, and the claimant had merely trusted her not to do so. Robert Walker LJ’s scepticism about this decision, expressed in Gillett v Holt,128 is understandable, since the whole point of the remedy is to compensate for the refusal of the representor to give effect to the promise. Often this ‘refusal’ equates to dying without making suitable testamentary provision, but in Gillett itself it was considered unconscionable for the defendant to change his will following repeated assurances to the claimant during 40 years of underpaid labour and other sacrifices, even though the defendant was still alive at the time the claim was brought. Before the House of Lords decided Thorner v Major, Gray and Gray opined that there was a ‘deep ambivalence’ about the revocability of a testamentary gift.129 To an extent, this was exemplified by Cobbe, in which Lord Walker proclaimed that in successful estoppel claims, ‘the claimant believed that the assurance on which he or she relied was binding and irrevocable’.130 He opined, however, that unlike in commercial cases: ‘The typical domestic claimant does not stop to reflect . . . whether some further legal transaction . . . is necessary to complete the promised title.’131 John Mee describes this analysis as ‘rather implausible’ because of the widespread knowledge of the need for a will in order to make testamentary provision.132 As discussed in section 2.4, the ability of estoppel effectively to dispense with the need for a will threatens the very legitimacy of the doctrine in facilitating claims by carers. Although he then undermined his own reasoning by suggesting that ‘some of the domestic cases might have been decided differently if the nature of the claimant’s belief had been an issue vigorously investigated in cross-examination’,133 Lord Walker’s restrictive analysis, like that of Lord Scott, was subsequently confined to the commercial context by Lord Neuberger in Thorner.134 Where there is a sufficiently clear representation in the first place, and the unconscionability present is also sufficient, a representation will become irrevocable. In Saliba v Tarmo, a case decided by the New South Wales Supreme Court, Nicholas J opined that the circumstances of the case (which included care provided by the claimant) justified the finding of an ‘implied promise by the deceased not to revoke the relevant provision in her will’   Gillett v Holt (n 31) 227–28.   Gray and Gray, Elements of Land Law (n 12) [9.2.46]. 130   Cobbe v Yeoman’s Row Management Ltd (n 5) [66]. 131   ibid [68]. 132   J Mee, ‘The Limits of Proprietary Estoppel: Thorner v Major’ (2009) 21 Child and Family Law Quarterly 367, 373. 133   Cobbe v Yeoman’s Row Management Ltd (n 5) [67]. See also Neuberger, ‘The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ (n 113). 134   Thorner v Major (n 7) [100]. 128 129

46  Property Law Claims that gave effect to her express representations.135 Moreover, it has been recognised that an attempt to ascertain the precise moment at which an assurance becomes irrevocable will often be futile in the domestic context.136 It seems unlikely that a claim will be successful where a promise is clearly understood to be non-binding.137 This is certainly true in the commercial context, as confirmed by Cobbe.138 Nevertheless, in Thorner v Major, Lord Neuberger opined that even if a statement is intended to be revocable, it may still be necessary for the defendant to compensate the claimant ‘unless the change of mind was attributable to, and could be justified by, a change of circumstances’.139 The Australian judiciary have been known to apply more stringent criteria with regard to the irrevocability of a representation. In Weeks v Hrubala, Young CJ in Equity Division said that a case would be ‘very flimsy’ without ‘the detailed evidence that one would expect’ of the terms of the promises and evidence that the claimant believed the promise to be binding.140 The same judge summarised the prevailing view in Barnes v Alderton, saying that: Everyone knows that people can change their wills, but the circumstances may show that the promise was intended to be, and was reasonably understood to be, not of a revocable testamentary instrument but of a gift by will taking effect on death’.141

This seems to place more of a focus on the ‘intention to be binding’ approach rejected in Thorner. On the other hand, in a judgment emanating from the same court, White J said that he did not consider that it would be necessary for the plaintiffs to have assumed that [the putative representor] would not be free to withdraw his promise or assurance. It would be sufficient, in my view, if they established that they acted reasonably and to their detriment on the assumption that [the putative representor] would not withdraw his promise or assurance, as distinct from having to assume that he could not lawfully do so.142

A related issue is the status of a conditional representation. In Ottey v Grundy, Arden LJ accepted that a representation made by a cohabitant could be conditional on the parties staying together, although she was unwilling to find that the representation in question was in fact condition  Saliba v Tarmo [2009] NSWSC 581 [53].   Thorner v Major (n 7) [8] (Lord Hoffmann). 137   See, eg Mee, ‘Proprietary Estoppel, Promises and Mistaken Belief’ (n 44) 188–92. 138   See also A-G of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd [1987] AC 114 (PC). 139   Thorner v Major (n 7) [89]. 140   Weeks v Hrubala (n 123) [34]. 141   Barnes v Alderton [2008] NSWSC 107, (2008) 13 BPR 25,281 [54]. 142   Palagiano v Mankarios [2011] NSWSC 61 [45]. 135 136



2.2  The Elements of Proprietary Estoppel 47

al.143 Thompson is unconvinced by Arden LJ’s suggestion since he finds it ‘difficult to believe’ that the carers in previous estoppel cases would not have been entitled to a remedy based on the work they had already done, even if they had stopped caring for their respective care recipients before death.144 Reluctance to find that an assurance is conditional was evident in Suggitt v Suggitt. The judge admitted that the claimant had been ‘a disappointment to his father’,145 who had made the representations, and that there were ‘quite late indications of ambivalence’.146 Judge Kaye QC nevertheless held that ‘his promises and assurances to his son, as a loving father, were unconditional’.147 In Shirt v Shirt, by contrast, the claimant in a similar position conceded that ‘what his father is said to have promised him was dependent on [the claimant] proving himself . . . suggested a degree of conditionality falling short of a commitment’,148 demonstrating that these matters are heavily fact-dependent. In the carer case of Murphy v Rayner, for example, Deputy Judge Jeremy Cousins QC held that ‘it was implicit that Mrs Murphy should remain Mr Rayner’s carer during his lifetime, so if she decided to leave, or behaved in such a manner that he could fairly require her to leave, she would not be entitled to relief’.149 In Thorner, Lord Scott said that ‘it is an odd sort of estoppel that is produced by representations that are, in a sense, conditional’150 and, as discussed in section 2.5.2 below, he preferred to use the constructive trust to decide cases involving such conditional representations. He was doubtful that an estoppel could prevent the realisation of the farm in that case to pay for the owner’s (formal) care had the need arisen, but that should be seen in the context of his opinion that a claim could still be made even after the property to which the representation related had been alienated. Such pragmatism could be unfortunate for the carer, but is to an extent inevitable. Moreover, in MacDonald v Frost, Deputy Judge Geraldine Andrews QC held that regardless of the deceased’s earlier actions, his remarriage among other things constituted a sufficient change in his circumstances such that it was no longer unconscionable for him to leave his house to ‘his wife and principal carer’ rather than the claimants.151 If nothing else, the case is an important reminder that while proprietary estoppel has frequently been used for the benefit of carers, a liberal interpretation   Ottey v Grundy [2003] EWCA Civ 1176, [2003] WTLR 1253.   MP Thompson, ‘Estoppel and Proportionality’ [2004] Conveyancer and Property Lawyer 137, 141. 145   Suggitt v Suggitt (n 82) [55] (Judge Kaye QC). 146   ibid [56] (Judge Kaye QC). 147   ibid [55]. 148   Shirt v Shirt (n 57) [30] (Judge Purle QC). His overall decision on estoppel was upheld by the Court of Appeal: [2012] All ER (D) 212 (Mar). 149   Murphy v Rayner (n 93) [277]. 150   Thorner v Major (n 7) [19]. 151   MacDonald v Frost (n 99) [129]. 143 144

48  Property Law Claims of the doctrine could prejudice the interests of a carer who would otherwise inherit the relevant property under a will or the rules of intestacy.152 2.2.2.5  The Overall Consequences of the Representation Requirement: Dealings or Outcomes? As we have seen, Thorner seemingly dilutes the requirement for a representation, except perhaps in relation to the certainty of the proprietary interest. At the very least, there is significant flexibility with regard to the requirement. This is reinforced by Lord Neuberger’s contention in Thorner that where an assurance could reasonably be said to have more than one possible meaning, a claim should succeed ‘if the facts otherwise satisfy all the requirements of an estoppel’.153 Flexibility will be an advantage to many carers, but it also leads to considerable uncertainty and apparent inconsistency, making it very difficult for a carer to predict whether his claim will succeed on the particular facts of his case. Indeed, one of the reasons for the problematically restrictive approach of the House of Lords in Cobbe was a fear that unconscionability could itself lead to a remedy in proprietary estoppel or, as Dixon puts it, that estoppel could become ‘the penicillin of equity’.154 In any case, in spite of its flexibility, the law of proprietary estoppel still fundamentally responds to unconscionability of dealing rather than outcome. In Thorner, Lord Scott155 cited Scarman LJ’s remark in Crabb v Arun DC to the effect that the right subsequently proved to be held by the estoppel claimant ‘is an equity arising out of the conduct and relationship of the parties’.156 For these purposes, ‘conduct’ equates to ‘dealing’, but the reference to the relationship of the parties may suggest that ‘unconscionability of outcome’ is relevant. That said, the purpose of the reference in both Thorner and Crabb was simply to emphasise that the relationship between the parties provides the context in which the conduct must be assessed. Although the House of Lords responded sympathetically to David’s plight in Thorner, there had to have been a representation that was ‘clear enough’ between the parties. While acquiescence may sometimes be sufficient where improvements to land are concerned, it is fundamentally unlikely that a carer will be able to cite estoppel other than to remedy unconscionability of dealing. The law still places much control of 152   Palagiano v Mankarios (n 142) involved an unsuccessful estoppel claim (and a successful family provision claim) against an estate left to the deceased’s daughter in its entirety on the basis that ‘she ha[d] helped [him] and looked after [him] on a daily basis and attended to all [his] needs’ ([2]). 153   Thorner v Major (n 7) [86]. 154   M Dixon, ‘Proprietary Estoppel: A Return to Principle?’ [2009] Conveyancer and Property Lawyer 260, 261. 155   Thorner v Major (n 7) [12]. 156   Crabb v Arun DC [1976] Ch 179, 192.



2.2  The Elements of Proprietary Estoppel  49

the remedy for a carer in the hands of the care recipient, at the expense of the most altruistic carers. This is true in spite of the wide-ranging approach adopted when evaluating whether an estoppel claim should succeed and to what extent, such that factors with little connection to the representation can assume crucial importance. These aspects of the law will be discussed throughout the rest of this chapter. The level of control possessed by the care recipient could be seen as inconsistent with society’s need for informal carers and the normative value it should place on caring. It upholds selfishness and can easily appear to penalise selflessness. These features of proprietary estoppel, however, are simply instances of the problems with adjusting property rights, specifically on the basis of unconscionability of dealing, in order to encourage people to perform publicly useful functions. The need for a representation reflects the idea that, as Richardson J explained in the New Zealand case of Gillies v Keogh, ‘a person is not required to become an obligor unless he or she so desires’.157 If such a representation is thought to be necessary to justify any successful claim by a carer, that suggests that a carer’s remedies should be confined to those addressing unconscionability of dealing and not attempt to address unconscionability of outcome. It will become clear that that view is not taken in this book, but that does not mean that the representation requirement should be abandoned in the particular context of estoppel. The next sub-section moves on to consider the reliance requirement. 2.2.3  The Reliance Requirement Proprietary estoppel is designed to protect those who incur detriment because of a representation made to them. The claimant carer’s state of mind must have been such that he has reasonably relied on the representation made by the care recipient.158 A fascinating example of a situation where reliance was not said to be reasonable is provided by Murphy v Rayner. There, Deputy Judge Jeremy Cousins QC held that the claimant could not reasonably rely on the assurances given by the defendant care recipient because of the way she herself had deceived him in order to procure payments from him. In the judge’s analysis, ‘Mrs Murphy knew that any assurances to her as to any expectations were impeachable on the grounds of her own dishonesty’.159 The result was that: ‘Any reliance by her was at her own risk; the risk of the discovery of her deception.’160   Gillies v Keogh (n 84) 347. See also the discussion of risk-taking in ch 4.   RP Wells, ‘Testamentary Promises: A New Approach’ (PhD thesis, King’s College London, 2007) 126. 159   Murphy v Rayner (n 93) [281]. 160   ibid [281]. 157 158

50  Property Law Claims It is difficult to feel any sympathy for exploitative carers such as Mrs Murphy, and it is heartening as a matter of policy that the Deputy Judge found a way to ensure that her estoppel claim could not succeed. More problematically, as classically defined, the estoppel doctrine will not come to the aid of a carer who was not influenced by the assurances in his decision to act (or to continue to act). Again, this has the potential to exclude many altruistic carers (of whom Mrs Murphy clearly was not one), who could be penalised if they cannot show that they would have stopped caring in the absence of the assurance. On its face, it also creates a problem for the carer who provides services in the same way both before and after the representations are made.161 2.2.3.1  Softening the Reliance Requirement These undesirable consequences of the reliance requirement have not gone unnoticed by the courts. Following decisions such as Wayling v Jones,162 the burden of proof of reliance is reversed once a representation and relevant detriment have been shown. In that case, the claimant, who was in a same-sex relationship with the deceased, worked for pocket money in the latter’s hotel business. The deceased had promised to leave the business to the claimant but died before he could do so. Although the claimant admitted that he would probably have stayed if no promises had been made, it was found that he would have left the deceased and discontinued his services if the promises had been reneged upon. The defendants had failed to discharge the burden placed on them, and the estoppel claim succeeded. The ‘reversed burden’ approach was applied in a ‘care’ context in Campbell v Griffin.163 Mr Campbell was originally Mr and Mrs Ascough’s lodger, but the ageing couple became increasingly dependent on him. At first instance, it was found that Mr Campbell did not rely on Mr Ascough’s assurances that he would have an interest in his house, since Mr Campbell had acted ‘out of friendship and a sense of responsibility’ rather than because of any expectation of a share.164 Overturning that decision, Robert Walker LJ declared that the judge had overlooked the presumption of reliance and placed too much weight on Mr Campbell’s admission that he could not have ignored Mr Ascough if he had been lying on the floor without having eaten for days.165 In fact, Mr Campbell claimed that he   Thompson, ‘Estoppel and Proportionality’ (n 144).   Wayling v Jones [1995] 2 FLR 1029 (CA). See Wells, ‘Testamentary Promises: A New Approach’ (n 158) 160–61 for an argument that the reversed burden occurred as early as the decision in Greasley v Cooke. 163   Campbell v Griffin [2001] EWCA Civ 990, [2001] WTLR 981. 164   ibid [20]. 165   ibid [28]. 161 162



2.2  The Elements of Proprietary Estoppel 51

would have moved out of the property (but continued to care) if the assurances had not been forthcoming, confirming that the reversed burden of proof had not been discharged. Robert Walker LJ echoed concerns expressed by Lord Denning MR in Greasley v Cooke on the dangers of hypotheticals in this context.166 Robert Walker LJ went further, expressing the view that ‘it would do no credit to the law if an honest witness who admitted that he had mixed motives were to fail in a claim which might have succeeded if supported by less candid evidence’.167 Lord Walker has summed up the position extra-­ judicially: an assurance ‘need not be the only operative cause of the assistance’, but instead it can happily co-exist as a cause with ‘feelings of love, affection, duty, or simply common humanity’.168 Mark Thompson welcomes this approach on the basis that it prevents a carer with a close personal relationship with the deceased from being placed in a worse position than someone without such a relationship.169 This optimism may be misplaced, since, as demonstrated below, the nature of the claimant’s relationship with the recipient can be considered at both the reliance and the detriment stages of the enquiry. The flexibility concerning the relevant motives for caring is nevertheless to be welcomed. In the New South Wales case of Weeks v Hrubala, Young CJ in Equity appeared to assume that the reliance requirement was stricter than in England and Wales. Although the case failed on the weakness of the promise itself, Young CJ in Equity suggested that he would require the claimants to show ‘that had they not believed the promises, they would not have continued to work’.170 This is not necessarily indicative of a reversal of the burden of proof such as that occurring in England.171 2.2.3.2  The Remaining Consequences of the Reliance Requirement Overall, while the reversal of the burden of proof involves considerable judicial innovation, it has the potential to provide justice for deserving carers and is therefore a positive development. Admittedly, there will still be cases where it is possible to show that the carer would almost certainly have continued to care for the representor even if the promise had never been made or if it had been reneged upon. An analogy could be drawn with MacDonald v Frost, where it was found that two daughters would

  Greasley v Cooke (n 51).   Campbell v Griffin (n 163) [29].   Walker, ‘Which Side “Ought to Win”?’ (n 6) 236. 169   Thompson, ‘Estoppel: Reliance, Remedy and Priority’ [2003] Conveyancer and Property Lawyer 157. 170   Weeks v Hrubala (n 123) [34]. 171   See also Estate of Bruinsma, Menczer v Menczer [2009] NSWSC 1466 [48]–[50] (White J). 166 167 168

52  Property Law Claims have continued to make monthly payments to their father even if he had not promised them a share in his estate.172 Moreover, the reliance requirement can produce arbitrary results. In Campbell, Mr Ascough had attempted to transfer his interest in the house to Mr Campbell by will, but since he held the property as a beneficial joint tenant with his wife, the gift failed when he predeceased her and she succeeded to the whole property by survivorship. Thompson points out that if Mr Ascough’s solicitor had failed to explain the need to sever a joint tenancy in order to avoid this outcome, Mr Campbell may have succeeded in a negligence action without the need to prove reliance.173 In this way, the requirement can frustrate a promise that was intended to have full effect, although it may be necessary in order to avoid rendering the representation requirement superfluous. Moreover, Mrs Ascough’s lack of testamentary capacity by the time of her husband’s death illustrates the potential vulnerability among defendants in ‘assistance’ cases,174 and the reliance requirement could be seen as an additional means of protecting them. David Burles expresses concern that conjugal cohabitants are forced to look like ‘gold-diggers’ if they are to bring a successful proprietary estoppel claim,175 and the same will be true for carers in particularly hard cases. This is mainly caused by the reliance requirement, whose further dilution seems unlikely. The courts have nevertheless responded in a pragmatic and sympathetic manner to the plight of the carer, albeit within the confines of the estoppel doctrine, and the next section demonstrates that he could be in a stronger position than the conjugal cohabitant. 2.2.3.3  Carers, Cohabitants and Reliance To the extent that they must do so, carers may find it easier than conjugal cohabitants to demonstrate reliance. In Coombes v Smith, Deputy Judge Jonathan Parker QC found that the claimant had left her husband to move into the defendant’s house because of her loving relationship with the defendant rather than because she expected to gain an interest in the house.176 This argument was reiterated in the more recent case of James v Thomas on the common intention constructive trust. In that case, a cohabitant engaged in unpaid manual work in her partner’s business, thereby 172   MacDonald v Frost (n 99). That finding was supported by particularly weighty evidence, however, since the daughters had begun making the payments before the earliest relevant representation was made, and originally did so pursuant to a separate arrangement with their parents whereby they would receive an advance on their inheritance in return for the payments. 173   Thompson, ‘Estoppel: Reliance, Remedy and Priority’ (n 169). 174   See, eg Murphy v Rayner (n 93). 175   D Burles, ‘“Promises, Promises” – Burns v Burns 20 Years On’ [2003] Family Law 834. 176   Coombes v Smith [1986] 1 WLR 808 (Ch).



2.2  The Elements of Proprietary Estoppel 53

effectively contributing to the mortgage on the property owned by him. In the Court of Appeal, Sir John Chadwick decided that: It was not at all surprising that . . . Miss James should do what she could to ensure that the business prospered. But . . . what she was doing gives rise to no inference that the parties had agreed (or had reached a common understanding) that she was to have a share in the property: what she was doing was wholly explicable on other grounds.177

Admittedly, judges in cases such as Grant v Edwards have been more sympathetic regarding the motivations of cohabitants.178 In that case, contributions to the household expenses were not said to be explicable unless the claimant had an interest in the property in question. Many carers will also be motivated by affection. However, the reasonable expectations for the type of relationship in question seem to be relevant, and an assumption that a carer acted without hope of a reward is less likely to be made than in the case of a cohabitant. 2.2.4  The Detriment and Unconscionability Requirement(s) 2.2.4.1  The Nature of Detriment Detriment is probably the least controversial element of proprietary estoppel as far as claims by carers are concerned.179 The rationale for claiming a remedy is to remunerate or compensate the carer for the sacrifices and contributions he has made, even if they are intangible,180 and the mere fact that care has been provided usually means that some detriment will have been incurred. Conversely, if no such detriment can be shown, the justification for the remedy disappears and the claimant does not realistically fit the description of a ‘carer’ at all. As Warren J recognised in Clarke v Meadus, ‘a change of position induced by a representation or promise is not enough because that change may actually be highly beneficial to the claimant’.181 The level of difficulty encountered in showing detriment is dependent on the type and extent of detriment considered relevant, which is a question of fact and degree.182 Detriment can encompass both the conferment of a benefit on the representor and the giving up of something valuable.183   James v Thomas [2007] EWCA Civ 1212, [2008] 1 FLR 1598 [27].   Grant v Edwards [1986] Ch 638 (CA). 179   cf Wells, ‘Testamentary Promises: A New Approach’ (n 158) 153 for a fear that Pearson v Williams [2001] VSC 509 suggests that the breaking of a promise is itself detriment, which would make every promise enforceable if true. 180   See, eg section 1.3.3 above. 181   Clarke v Meadus [2010] EWHC 3117 (Ch), [2011] 1 P & CR DG18 [65]. 182   Watts v Story [1983] EWCA Civ J0714-5, 8 (Dunn LJ). 183   See, eg Parker v Parker [2003] EWHC 1846 (Ch), [2003] NPC 94, considered by MP Thompson, ‘My Home is not my Castle’ [2004] Conveyancer and Property Lawyer 516. 177 178

54  Property Law Claims Many carers will have done both, for example, by giving up employment or other opportunities as well as providing care. As Nettles JA made clear in the Supreme Court of Victoria in Donis v Donis, ‘the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it’.184 That said, in care cases some of the detrimental reliance will inevitably be in the form of a benefit moving to the care recipient.185 Detriment need not involve financial expenditure, provided it is substantial,186 and in Watts v Story Slade LJ decided that it was not ‘possible, or even desirable, to attempt to define the nature and extent of the prejudice or detriment which has to be established’ where the claimant’s case is not based on financial contribution.187 The importance of non-financial and intangible contributions is illustrated by Walters v Smee, a case that in the view of the judge was ‘not primarily about the financial value of what the [claimants] were doing, but the care and commitment that they gave to [the care recipient] and the result they achieved . . . of keeping her in the property in which she wanted to remain’.188 Even spending time and participating in social activities with the representor was seen as sufficient to constitute detriment in Gillett v Holt, although it was also significant that the claimant had, inter alia, left school without qualifications in order to work for the defendant and tolerated a great deal of intrusion into his social and personal life.189 Wells is unsettled by this apparent extension to the concept of detriment, on the basis that it requires the courts to make ‘value judgments on moral and policy questions which have hitherto been beyond the boundaries of proprietary estoppel’.190 The novelty of such an exercise is questionable, but it is nonetheless an essential requirement where social relationships are concerned. If Wells is correct, her arguments have the potential to detract from the utility of proprietary estoppel in supporting the carer. Whatever form the detriment takes, there must be some link between it and the assurance, and the detriment is measured from the point when the property owner seeks to go back on that assurance.191 Fundamentally, according to Dunn LJ in Watts, the court ‘has to be satisfied that, when all the circumstances are taken into account, the detriment or prejudice is   Donis v Donis [2007] VSCA 89 [19].   cf the discussion of subjective devaluation in section 4.2 below. 186   Gillett v Holt (n 31) 232. 187   Watts v Story (n 182) 10. 188   Walters v Smee [2008] EWHC 2029 (Ch), [2009] WTLR 521 [139] (Judge Purle QC). 189   Gillett v Holt (n 31) 234–35. 190   R Wells, ‘The Element of Detriment in Proprietary Estoppel’ [2001] Conveyancer and Property Lawyer 13, 26. 191   Gillett v Holt (n 31) 232 (Robert Walker LJ). 184 185



2.2  The Elements of Proprietary Estoppel 55

such that it would be inequitable to allow the party who made the relevant representation to go back on it’.192 Informal carers are unlikely to have difficulty in proving detriment, provided their caring contribution is significant and they have not received countervailing benefits sufficient to extinguish the detriment.193 Where countervailing benefits are at issue, the Privy Council in Henry v Henry emphasised that it was vital to balance them against the detriment incurred.194 In the case before the Board, the judge below had considered it fatal to the estoppel claim that the claimant had lived rent-free on the land in question and been able to derive his livelihood from it.195 The Privy Council disagreed. It held that the claimant, in remaining on the land and looking after the legal owner, had ‘opted for a hard life, in which he . . . struggle[d] to make ends meet and to provide for his family, in circumstances where more attractive prospects beckoned elsewhere’.196 It could be argued that a carer is more deserving than a claimant who has improved property primarily for his own benefit based on an assumption that he had an interest in it,197 although such claimants have conferred a benefit on the landowner and their motivation is unlikely to be considered relevant in this respect. In any case, as discussed in section 2.2.4.4, the ease with which a carer can demonstrate detriment often contrasts with the difficult position of the ‘mere’ cohabitant. Despite their favourable position, carers must exercise caution when framing their claims. In Campbell v Griffin,198 Mr Campbell quantified his expenditure at just under £1,700, excluding other day-to-day expenses. The judge had found insufficient detriment to justify a proprietary estoppel claim, and Robert Walker LJ suggested that the detailed but incomplete schedule of expenditure had the effect of ‘trivialising’ Mr Campbell’s claim.199 Robert Walker LJ criticised the judge for his over-concentration on quantifiable detriment and emphasised the importance of unconscionability. Campbell contrasts with the earlier decision of the Court of Appeal in Jones v Watkins.200 There, the claim failed because, inter alia, ‘relevant detriment in the form of more than trivial expenditure of money’ was not established and the court could not assume that the claimant ‘might have been able to show substantial expenditure . . . if he had kept further   Watts v Story (n 182) 10.   See, eg Powell v Benney [2007] EWCA Civ 1283, (2007) 151 SJLB 1598, although a small award was in fact made in that case. 194   Henry v Henry (n 45). 195   ibid [27], citing para 12 of Cottle J’s judgment. 196   ibid [62] (Sir Jonathan Parker, giving the advice of the Board). 197   See, eg Inwards v Baker [1965] 2 QB 29 (CA). 198   Campbell v Griffin (n 163). 199   ibid [17]. 200   Jones v Watkins [1987] EWCA Civ J1126-4. 192 193

56  Property Law Claims records’.201 In Thorner, however, Lord Walker himself cited Jones as ‘a good example of an exaggerated claim that was rightly dismissed by the Court of Appeal on the ground of no sufficient detriment’.202 2.2.4.2  The Relationship between Detriment and Unconscionability The complexity of the relationship between detriment and unconscionability may have been caused by Lord Denning MR’s remark in Greasley v Cooke that the claimant need not have incurred expenditure or otherwise prejudiced herself in order to establish an estoppel claim.203 In his view, it is sufficient for the claimant to act on the faith of the representation in circumstances in which it would be ‘unjust and inequitable’ for the representor to renege on it. Despite this, in the same case, Dunn LJ was in ‘no doubt’ that detriment was required.204 Moreover, in Watts v Story, Dunn LJ later claimed that Lord Denning was addressing a terminological problem and did not mean that detriment was not required.205 In any event, Dunn LJ found it difficult to imagine a set of facts where there would be sufficient unconscionability in the absence of detriment. In Gillett v Holt, Robert Walker LJ confirmed that while detriment was required, it was ‘not a narrow or technical concept’ and ‘must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances’.206 The strong relationship between these concepts was further cemented by Robert Walker LJ’s assertion that the test for whether the detriment is sufficiently substantial is also ‘the essential test of unconscionability’.207 In fact, Gray and Gray use the term ‘unconscionable disadvantage’ as an alternative to detriment.208 2.2.4.3  The Consequences of the Focus on Unconscionability As we have seen, an unconscionable refusal by the property owner to give effect to her representation remains at the heart of every proprietary estoppel claim, although Delany and Ryan consider this to be a relatively recent development.209 In Jennings v Rice, Aldous LJ declared that the requirement of unconscionability arises from the very fact that proprietary estoppel is an   ibid 25.   Thorner v Major (n 7) [60]. 203   Greasley v Cooke (n 51) 1311. 204   ibid 1313–14. 205   Watts v Story (n 182) 6–7. 206   Gillett v Holt (n 31) 232. 207   ibid 232. 208   Gray and Gray, Elements of Land Law (n 12) [9.2.8]. 209   H Delany and D Ryan, ‘Unconscionability: A Unifying Theme in Equity?’ [2008] Conveyancer and Property Lawyer 401. 201 202



2.2  The Elements of Proprietary Estoppel 57

equitable doctrine,210 and Lord Scott has described unconscionable behaviour as the ‘key that unlocks the door’ to the equitable remedy.211 As emphasised above, the behaviour often takes the form of a failure to make the necessary provision in a will. For instance, the Court of Appeal in Jennings v Rice found that the testatrix ‘chose to die intestate and deliberately disappointed Mr Jennings’.212 That said, and in spite of the fact that proprietary estoppel is being presented as a means of redressing ‘unconscionability of dealing’, there is some doubt as to whether the unconscionability relates primarily to the defendant’s conduct or to the overall circumstances of the case. This is illustrated by the judgment of the Privy Council in Lim Teng Huan v Ang Swee Chuan,213 discussed in section 1.3.2. In Taylor v Dickens, Judge Weeks QC expressed concern that placing too much weight on overall unconscionability would mean that ‘the days of justice varying with the size of the Lord Chancellor’s foot would have returned’.214 Despite these misgivings, he appeared to change his approach at first instance in Jennings.215 Meanwhile, extra-judicially, Lord Walker has acknowledged the difficulty caused by the concept of unconscionability, but also confirmed that its use is unavoidable.216 In Cobbe, he confirmed unconscionability to be ‘a very important part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the other elements’.217 This view was underlined by his assertion that ‘[i]f the other elements appear to be present but the result does not shock the conscience of the court, the analysis needs to be looked at again’.218 By contrast, Handley AJA has argued in his extra-judicial writings that: ‘[t]he requirements of good conscience have been subsumed in the elements which define each form of estoppel by conduct and unconscionability has no further useful role.’219 In England at least, it seems that unconscionability will continue to form an explicit part of the estoppel analysis.220 As well as constituting detriment, the performance of caring work will often make it unconscionable for the recipient to deny the carer what he has been promised. Indeed, it has been said that the modern doctrine of estoppel ‘bears a close resemblance’ to the   Jennings v Rice (n 53) [22].   Blue Haven Enterprises Ltd v Tully [2006] UKPC 17 [24]. 212   Jennings v Rice (n 53) [14]. 213   Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113. 214   Taylor v Dickens (n 61) 820. 215   Jennings v Rice [2001] WTLR 871 (Ch). See Thompson, ‘The Flexibility of Estoppel’ (n 32) 229 for discussion. 216   Walker, ‘Which Side “Ought to Win”?’ (n 6) 232. 217   Cobbe v Yeoman’s Row Management Ltd (n 5) [92]. 218   ibid [92]. 219   KR Handley, ‘Unconscionability in Estoppel by Conduct: Triable Issue or Underlying Principle?’ [2008] Conveyancer and Property Lawyer 382, 400. See also KR Handley, ‘Further Thoughts on Proprietary Estoppel’ (2010) 84 Australian Law Journal 239. 220   See, eg Murphy v Rayner (n 93) [299]. 210 211

58  Property Law Claims principles of unjust enrichment.221 Conversely, if the claimant has failed to provide adequate care, any revocation of the original promise or lack of provision by will is less likely to be unconscionable.222 The nature of unconscionability remains uncertain, and Nicholas Hopkins claims that the one ‘guideline’ to emerge from authorities such as Campbell and Ottey v Grundy is that the court should consider ‘whether the claimant’s acts go beyond those that could be expected of him or her by virtue of the parties’ relationship’.223 This ‘beyond expectations’ issue is explored further in section 2.2.4.4 below. Despite the difficulties with the concepts, neither detriment nor unconscionability is likely to prove a significant stumbling block for many informal carers who can point to an eligible representation. 2.2.4.4  Comparing Carers and other Claimants Despite the lack of a bright-line distinction between conjugal cohabitants and carers, there have been some suggestions that the courts view these categories of claimants slightly differently. A key case in this regard is Ottey v Grundy,224 in which Miss Ottey brought an estoppel claim against Mr Andreae’s estate. Although the two had been a cohabiting couple, Miss Ottey had become more of a carer for Mr Andreae due to his alcohol problem, making ‘extraordinary efforts’ to keep his drinking under control.225 Predictably, this was a central aspect of the detriment that she cited. Mr Andreae’s executor sought to argue that she had done no more than could be expected of a partner, as opposed to a voluntary carer. The Court of Appeal rejected the submission on the facts, since: ‘There was material from which [the judge] could properly conclude that the tasks which Miss Ottey performed for Mr Andreae went well beyond anything that could be expected of her as a carer and girl friend.’226 Notwithstanding the conclusion in the case, this implies that different levels of detriment are considered normal for a ‘mere’ cohabitant as compared to a ‘pure’ carer. Moreover, Arden LJ’s acceptance that ‘there can be situations where a promise made by one party to a matrimonial or quasi-matrimonial relationship to another is conditional on the parties staying together’, with the conditionality arising ‘expressly or by implication’,227 also suggests that it could be easier for a carer than a cohabitant to succeed with a proprietary estoppel claim.   Sledmore v Dalby (1996) 72 P & CR 196 (CA) 208 (Hobhouse LJ).   Maçon v Quérée [2001] JLR 80 is a case from Jersey involving such a scenario. 223   N Hopkins, ‘Unconscionability, Constructive Trusts and Proprietary Estoppel’ in M Bryan (ed), Private Law in Theory and Practice (Abingdon, Routledge-Cavendish, 2007) 225. 224   Ottey v Grundy (n 143). 225   ibid [5]. 226   ibid [59]. 227   ibid [49]. See section 2.2.2.4 above. 221 222



2.2  The Elements of Proprietary Estoppel  59

The lack of sympathy that is often displayed to the cohabitant in estoppel cases is illustrated by counsel’s remark in Coombes v Smith that anyone who moves into a house owned by his or her cohabitant has inevitably come from somewhere to live with them, and ‘if the mere fact of that inevitable change were sufficient detriment, there would be detriment in every case’.228 District Judge Cardinal has said that successful proprietary estoppel claims by cohabitants often involve ‘life-changing steps taken by the claimant at the behest of the respondent’.229 This often applies equally to carers, a prime example being the claimant in Jennings v Rice, who eventually came to spend almost every night sleeping on the deceased’s sofa. Powell v Benney,230 on the other hand, illustrates that this need not always be true, since the claimants there received significant countervailing benefits. The emphasis seems to be on detrimental reliance going beyond that which might reasonably be expected for the type of relationship in question.231 A carer who had no existing relationship with the recipient, or only a contractual and quasi-commercial relationship covering matters besides care, may therefore find it easier than a cohabitant or adult son or daughter of the recipient to show sufficient detriment. The difference might be reinforced by the decision of Judge Norris QC in Lissimore v Downing, discussed in section 2.2.2.3 above. Although the representations made there were insufficiently certain to found a proprietary estoppel claim in the case itself, which involved cohabitants, the judge did express the view that statements by one cohabitant to his partner could be contrasted with those made to ‘unpaid or underpaid workers . . . encouraged to work on because they would be “treated right”, and for whom a commensurate reward could be objectively assessed’.232 Carers could benefit from any difference in approach that this view indicates, although this could be at the expense of doctrinal consistency. In Lissimore Judge Norris QC implied that he was willing to allow the ease of assessing the reward to influence whether the claim should be accepted at all, a step he had explicitly set out to avoid taking. Moreover, Rebecca BaileyHarris expresses doubts about the cogency of the distinction made,233 and Wells has highlighted the difficulties for the court in judging what is ‘normal’ for the particular kind of relationship in question.234

  Coombes v Smith (n 176) 816.   M Cardinal, ‘In Practice – Inheritance or Estoppel – How the Cohabitant Succeeded’ [2004] Family Law 362, 364. For an allegation that the courts’ approach to detriment is gender-biased, see L Flynn and A Lawson, ‘Gender, Sexuality and the Doctrine of Detrimental Reliance’ (1995) 3 Feminist Legal Studies 105. 230   Powell v Benney (n 193). 231   See section 2.2.4.1 above for a discussion of the nature of detriment in general. 232   Lissimore v Downing (n 96) [18]. 233   R Bailey-Harris, ‘Case Report: Property – Disclosure’ [2003] Family Law 566. 234   Wells, ‘The Element of Detriment in Proprietary Estoppel’ (n 190) 22–25. 228 229

60  Property Law Claims It is also necessary to compare carers with other workers. There does not appear to be much of a distinction between these categories in the minds of the English judiciary. Although it involved farm work, for example, Thorner was considered just as much of a ‘domestic’ case as more obvious care cases such as Jennings. That said, there has been some recognition of the unique position of the carer. For example, Robert Walker LJ has noted the difficulty of quantifying the detriment caused by the ‘everincreasing burden of care for an elderly person, and . . . having to be subservient to his or her moods and wishes’.235 He took judicial notice of the cost of private nursing care over the relevant period for the purposes of quantifying the relief in Campbell v Griffin and Jennings v Rice. While Robert Walker LJ was keen to avoid detailed calculations involving hourly rates in Jennings, in contrast to his Canadian counterparts in the context of unjust enrichment,236 he saw such comparisons as a ‘useful cross-check in the exercise of the court’s discretion’.237 Even if it were possible to distinguish between care and other work on the facts, it could be debated whether care work should be valued more highly in principle, at least when examined from a property law perspective. While care work may be more demanding, it might be argued that the vulnerability of the recipient means that the judge should be slower to find that the recipient acted unconscionably. Similarly, while some carers will find it more difficult to stop caring than other proprietary estoppel claimants, this means that they are less likely to be able to demonstrate reliance than other workers who choose to remain despite the fact that their services might be easier to replace commercially. Of course, this argument is severely weakened by the criticism of the reliance requirement undertaken above. Finally, while care work is more difficult to value than, for example, contributions that have increased the value of a farm or residential property, this is insufficient on its own to detract from the inherent value of caring. In any event, if care work is seen as more worthy of reward than other work, it will often be so rewarded through the application of the general principles. Care work can be more demanding and cause more detriment to the carer than other work. Moreover, the willingness of the courts to consider the cost of private nursing care even in granting relief to non-professional carers could mean that their efforts will sometimes be rewarded more handsomely than some other types of manual labour. The principles governing the remedy granted once a successful claim is made out must now be considered.   Jennings v Rice (n 53) [51].   See discussion of the basis of ‘value received’ calculations in care cases in section 4.5 below. 237   Jennings v Rice (n 53) [54]. 235 236



2.3  The Remedial Discretion 61 2.3  THE REMEDIAL DISCRETION

2.3.1  The Nature of the Remedy Recognition of the viability of a proprietary estoppel claim is far from the end of the matter. The court must concretise the claimant’s ‘inchoate equity’ and award an appropriate remedy, which can take many forms.238 The claimant has a form of proprietary interest, which is capable of binding third parties, from the moment the equity arises.239 Elizabeth Cooke has described the ‘equity’ as something greater than a cause of action but less than a property right,240 while Susan Bright and Ben McFarlane argue that the doctrine should give rise to a property right only where a personal right is inadequate to protect the claimant’s reliance.241 It is also a matter of debate whether the court is creating or merely discovering the remedy by which the equity is to be satisfied,242 although the discretionary nature of this process would make an argument based on ‘discovery’ highly artificial. 2.3.2  The Court’s Objective Whatever the precise nature of the right being vindicated, the extent of the remedy must at least be ascertained. A key question is whether the aim in doing so is to satisfy the claimant’s expectation or simply to reverse the detriment suffered, although Mark Pawlowski has written that: [T]he fundamental aim of proprietary estoppel . . . is not necessarily to fulfil the claimant’s expectations nor . . . to compensate him for his detrimental reliance, but to satisfy the equity in a way which does justice to both parties having regard to all the circumstances and, in particular, the need for . . . proportionality between the expectation and detriment.243   Gray and Gray, Elements of Land Law (n 12) [9.2.88].   Re Sharpe (A Bankrupt) [1980] 1 WLR 219 (Ch) 225 (Browne-Wilkinson J); Land Registration Act 2002, s 116(a). For a discussion of the evolution of this principle, see Gray and Gray, Elements of Land Law (ibid) [9.2.89]. Henry v Henry (n 45) is an example of a successful estoppel claim by a carer against a third party purchaser. For an argument that the equity can be passed to successors in title of the estoppel claimant, or otherwise passed onto or shared by a third party, see M Pawlowski, ‘Estoppel and Successors in Title’ [2011] Family Law 1251. 240   E Cooke, ‘Estoppel, Discretion and the Nature of the Estoppel Equity’ in M Bryan (ed), Private Law in Theory and Practice (n 223) 194. 241   B McFarlane and S Bright, ‘Proprietary Estoppel and Property Rights’ [2005] Cambridge Law Journal 449. For a discussion of the insolvency-related difficulties surrounding testamentary promises, see Wells, ‘Testamentary Promises: A New Approach’ (n 158) 79–81. 242   Cooke, ‘Estoppel, Discretion and the Nature of the Estoppel Equity’ (n 240) 181–86. 243   M Pawlowski, ‘Satisfying the Equity in Estoppel’ (2002) 118 Law Quarterly Review 519, 519–20. 238 239

62  Property Law Claims The court’s role is to ‘form a view as to what is the minimum required’ to satisfy the equity (emphasis added),244 and in Henry v Henry the Privy Council emphasised that: ‘Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application.’245 There is a strong link between the elements of the claim and the size of the remedy awarded, which can cause confusion. This is especially true of detriment, since there can be little factual difference between cases where the detriment is insufficient to found a claim at all, and those where the detriment did cross the threshold but only a small remedy is required. An example is Powell v Benney. There, while Judge Levy QC considered that the detriment was ‘not such as to establish the pleaded estoppel’, his award of the £20,000 suggests that he accepted that the claim was made out but the equity fell short of the amount sought.246 Once the equity is established, the court has a discretion in satisfying it, and Hopkins has argued that unconscionability is central in determining the relief as well as the existence of the claim.247 This suggests that obtaining a generous reward should be unproblematic for the informal carer, although Walker LJ’s categorisation of estoppel scenarios means that an adequate remedy is not guaranteed. 2.3.3  Robert Walker LJ’s Dichotomy In Jennings v Rice, Robert Walker LJ distinguished two categories of proprietary estoppel case.248 In the first category (containing ‘bargain’ cases), where there was a bargain in reasonably clear terms defining both the claimant’s expectation and the detriment required to earn the fulfilment of the expectation, the expectation should usually be satisfied. In the other category (containing ‘non-bargain’ cases), where the expectation is ‘uncertain, or extravagant, or out of all proportion to the detriment . . . suffered’, the court has a wide discretion and should generally satisfy the equity in a more limited way.249

  Gillett v Holt (n 31) 237.   Henry v Henry (n 45) [65] (Sir Jonathan Parker, giving the advice of the Board). For criticism of the Board’s failure to justify the lesser remedy in Henry as against that in the similar case of Thorner, see Delaforce v Simpson-Cook [2010] NSWCA 84, (2010) 78 NSWLR 483 [78] (Handley AJA). 246   Powell v Benney (n 193) [17]. 247   Hopkins, ‘Unconscionability, Constructive Trusts and Proprietary Estoppel’ (n 223) 217. 248   Jennings v Rice (n 53) [45]–[56]. 249   ibid [50]. 244 245



2.3  The Remedial Discretion 63

2.3.3.1  Criticisms of the Dichotomy Gardner has doubted the existence of this strict dichotomy.250 Although he finds some support for Robert Walker LJ’s approach in previous authorities, he highlights others that are inconsistent with it and claims that few decisions fall distinctly on either side of the line. In attempting to determine how a case should be placed in one or other category (and simultaneously seeking to show the unworkability of the division), Gardner begins with the uncontroversial assertion that a scenario is definitely a ‘bargain case’ if certain acts are required as payment for a promise. Conversely, he suggests that there is definitely no bargain where the representor does not lay down any requirement and, despite knowledge of the acts performed by the claimant, has no interest in them. The latter set of circumstances is highly unlikely to occur in a caring context. A recipient who owns the property in question will almost always have an interest in the services provided by the carer, and a property owner who is not the recipient is unlikely to make relevant representations unless she has some form of interest in the care being provided, for example because she is a relative of the recipient. Gardner then highlights two paradigm estoppel situations that cause difficulties for Robert Walker LJ’s analysis. The first is where there is a bargain but the claimant fails to perform his side of it. Gardner suggests that if it is still possible for the claimant to perform his side, the case remains in the bargain category and the claimant is entitled to the remedy if he goes on to do so. If it is no longer possible, Gardner queries whether the claimant should still be able to invoke the bargain if the failure was not his fault or, using a stricter approach, if it was the defendant’s fault, but acknowledges the undesirability of attributing and placing weight on fault in the breakdown of relationships. Such attribution may be less problematic in a ‘pure’ care context than a cohabitation one, but if Gardner’s argument is accepted it remains true that Robert Walker LJ’s dichotomy is not suited to all of the fact patterns to which it will be applied. Gardner’s second example is a typical scenario involving an informal carer. It arises where the property owner does not expressly require the acts performed, and yet ‘he is benefited by them, and freely accepts them, and makes his promise expressly or impliedly in recognition of the claimant’s having performed them and continuing to perform them’.251 A definitive answer to whether there is a bargain in such cases, in Gardner’s view, may be found only if one takes an ‘artificial, stylised, view of the facts’.252 Following his argument, Robert Walker LJ’s analysis 250   S Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (2006) 122 Law Quarterly Review 492. 251   ibid 496. 252   ibid 497.

64  Property Law Claims is fundamentally unsuited to many proprietary estoppel claims by informal carers. That said, Powell v Benney matched Gardner’s description, and Sir Peter Gibson effectively answered his question whether a bargain exists.253 He confirmed that both the expectation and the detriment must be reasonably clear in order to bring the case within the bargain category. The mere fact that the deceased recipient had intended to transfer the property to the claimants and that they had been informed of his intention did not give rise to a ‘consensual arrangement’.254 The recipient had not required the acts and ‘the element of detriment was not defined with clarity or at all’.255 Of course, the fact that an answer was provided in one instance does not detract from the difficulty of the question, nor does it necessarily ensure that justice is done. Gardner concludes that since the exercise of placing the case at hand into one of the categories is itself discretionary, it is desirable to talk of a single discretion instead. 2.3.3.2  The Current Status of the Dichotomy Despite its problematic aspects, it seems that Robert Walker LJ’s approach remains good law. While Sir Peter Gibson acknowledged Gardner’s ‘powerful’ criticisms in Powell v Benney, he found it unnecessary to decide on their validity, since both the parties before him accepted the dichotomy.256 Similarly, while Lord Walker himself has since made an extra-judicial admission that he ‘would have done better to refer to a spectrum rather than a dividing line’ in Jennings, he recognised that he could not affect its precedential value.257 Therefore, the dichotomy will be maintained in the following discussion. Whether the cases lie on a spectrum or within a dichotomy, it is unfortunate from the carer’s perspective that so much weight is placed on certainty rather than desert caused by the extent of the detriment. Nevertheless, even within the non-bargain category, it stands to reason that the more a carer does, the more likely it is that his expectation will be considered proportionate to his detriment and the less discretion will be involved.

  Powell v Benney (n 193).   ibid [22]. 255   ibid [22]. 256   ibid [21]. 257   Walker, ‘Which Side “Ought to Win”?’ (n 6) 239. 253 254



2.3  The Remedial Discretion 65

2.3.4  The Relevant Factors 2.3.4.1  Bargain Cases Cases involving unpaid carers will rarely fall into Robert Walker LJ’s bargain category. It seems unlikely that a recipient would fail adequately to remunerate a carer on a formal basis, and yet make a clear bargain (including certainty in respect of the detriment required) without giving effect to it. Nevertheless, in Jennings, Robert Walker LJ used the caring context to illustrate the bargain category when he spoke of a scenario involving: [A]n elderly benefactor who reaches a clear understanding with the claimant (who may be a relative, a friend, or a remunerated companion or carer) that if the claimant resides with and cares for the benefactor, the claimant will inherit the benefactor’s house (or will have a home for life).258

Although the remunerated ‘companion or carer’ could be outside the doctrine of proprietary estoppel altogether, Robert Walker LJ deliberately included in this category situations where the only bar to the enforcement of a contract is non-compliance with formality requirements, such as those in section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. This suggests that the estoppel doctrine can sometimes have a role even in cases where there is a formal arrangement supported by consideration between the carer and the recipient, provided the arrangement itself is insufficient to satisfy the expectation. As discussed above,259 however, in the light of Cobbe it is now a matter of debate whether estoppel can remedy non-compliance with section 2 of the 1989 Act. In the bargain category, according to Robert Walker LJ, the court should ideally satisfy it by transferring the specific property promised, provided the case is ‘free from other complications’.260 On the other side of the argument, Aldous LJ spoke in Jennings v Rice of a single discretion. He went further in opining that ‘if the conscience of the court is involved, it would be odd that the amount of the award should be set rigidly at the sum expected by the claimant’.261 This suggests that, even if he had been persuaded by the existence of two distinct categories of case, it would nevertheless be unusual for the expectation to be fulfilled within either category. Moreover, while Ms Cooke’s expectation, that is a life interest in the house, was satisfied in Greasley v Cooke, such fulfilment seems to occur less frequently in modern care cases given the ‘renewed stress’ on proportionality.262   Jennings v Rice (n 53) [45].   See section 2.2.2.3 above. 260   Jennings v Rice (n 53) [45]. 261   ibid [21]. 262   Cooke, ‘Estoppel, Discretion and the Nature of the Estoppel Equity’ 183. 258 259

66  Property Law Claims One decision that appears to be within the bargain category is Thorner v Major, although this was not made explicit by any of the judges who considered it.263 At first instance, it was said that the key feature of the case was that the claimant had demonstrated a ‘remarkable’ level of commitment to the now deceased property owner without any countervailing benefits, and as a result had a ‘compelling case for the fulfilment of his expectation’.264 Deputy Judge John Randall QC concluded that it would not be unjust or disproportionate to fulfil the expectation, taking into account that both parties knew the extent and nature of the farm, and that the claimant’s work over the years had made a major contribution to its condition and survival. Therefore, the claimant was entitled to the farm and all property related to it. Significantly, however, it was still thought to be disproportionate for the claimant to receive the deceased’s non-agricultural assets, even though at times he may legitimately have expected to inherit the whole estate. It therefore seems that the courts are anxious to apply the minimum equity approach even in bargain cases, such that there is some room for discretion. An alternative possibility is that Thorner was not in fact a bargain case. On that basis, it remains possible for the expectation to come close to being satisfied even in a non-bargain case. Unfortunately, the House of Lords did not fully address the remedy when the case came before it. Lord Walker said simply that there was ‘no ground on which to challenge the judge’s discretion in determining the remedy’, and the House restored Deputy Judge John Randall QC’s order.265 2.3.4.2  Non-Bargain Cases and the Australian Approach Due to the difficulties with demonstrating a bargain, carers are much more likely to be at the mercy of the court’s wide discretion, as Robert Walker LJ admitted ‘many honest claimants’ would be.266 There are two main reasons why a case will fall into the non-bargain category: uncertainty of expectation or disproportionality of expectation. It must be remembered, however, that uncertainty of expectation could mean that there is no valid representation in the first place.267 In Jennings v Rice, Aldous LJ recognised that discretions could be problematic, but also that an overly rigid approach could preclude an ‘equit­able result’.268 In particular, he was concerned that simply satisfying 263   See Mee, ‘The Limits of Proprietary Estoppel: Thorner v Major’ (n 132) 381–82 for a discussion of the remedy in Thorner. 264   Thorner (Ch) (n 67) [139]. 265   Thorner v Major (n 7) [66]. 266   Jennings v Rice (n 53) [47]. 267   See section 2.2.2.1 above. 268   Jennings v Rice (n 53) [37].



2.3  The Remedial Discretion 67

the expectation would lead to the same result regardless of the size of the estate or the amount of work in fact performed by Mr Jennings. The argument is certainly valid, particularly where there is no real bargain, although an alternative approach could attach great significance to the precise timing of the representations. In Ottey v Grundy, one of the reasons given for refusing to satisfy fully the claimant’s expectation was that a ‘large part of the time which [she and the deceased] were to live together had passed’.269 This was in spite of the fact that she had cared for the deceased for years beforehand. Although the result appears harsh, this timing problem is an unavoidable consequence of the reliance requirement. In any event, Robert Walker LJ made it plain that the court must take a ‘principled approach’, and that its discretion is not an unfettered one.270 He elucidated a non-exhaustive list of factors to which a court might have regard when exercising the discretion. The most important consideration, and the one that will be relevant in every case, is proportionality between the expectation and the detriment, which Gardner convincingly interprets to mean that there must be ‘proportionality between the expectation, the detriment and the outcome’.271 Gardner expresses concern not only that proportionality gives no real indication as to the quantum of the outcome, but also that both the expectation and the detriment may be unquantifiable.272 The quantum problem can be partially addressed, in Gardner’s view, through the assertion that the judge is to seek the outcome that, in his or her view, ‘best redresses the unconscionability’.273 Similarly, Hopkins opines that the court’s real concern is to avoid a disproportionate result, after which it will make full use of its discretion.274 In Jennings, Robert Walker LJ held that in most cases, fulfilment of the expectation remains the starting point, but is ‘no more’ than that.275 Both the real value and the perceived value will be relevant. The Court took into account the fact that Mr Jennings did not know the value of the estate, and that both the real and perceived value were out of proportion to what he might reasonably have expected to charge for his services. Consideration   Ottey v Grundy (n 143) [62] (Arden LJ).   Jennings v Rice (n 53) [43].   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 498. On the other hand, Mee is unconvinced by this assumption: J Mee, ‘The Role of Expectation in the Determination of Proprietary Estoppel Remedies’ in M Dixon (ed) Modern Studies in Property Law, Vol 5 (Oxford, Hart Publishing, 2009) 406 on the basis that there are logical problems with a concept of proportionality related to two values. 272   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250). This is similar to Morris’s criticism of the use of proportionality in the theory of criminal sentencing: N Morris, ‘Desert as a Limiting Principle’ in A von Hirsch and A Ashworth (eds), Principled Sentencing (Oxford, Hart Publishing, 1998). 273   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 500. 274   Hopkins, ‘Unconscionability, Constructive Trusts and Proprietary Estoppel’ (n 223) 216. 275   Jennings v Rice (n 53) [47]. 269 270 271

68  Property Law Claims of such knowledge (or lack thereof) on the part of the property owner is particularly important where an older care recipient has lived in a house for many years, and may be unable accurately to value either her own property or the care she has received. Robert Walker LJ was adamant in Jennings that the expectation should not be abandoned in favour of using detriment as the appropriate measure of relief unless the detriment is easily quantifiable and amounts solely to expenditure on improvements made to the home of the representor. He briefly contrasted his own approach with what he saw as the preference for a reliance loss approach in some Australian decisions.276 Indeed, in Commonwealth of Australia v Verwayen, the majority of the High Court of Australia appeared to view the reliance loss measure as the standard estoppel remedy.277 On the other hand, Gardner sees the Verwayen decision as ‘a somewhat ambivalent treatment of the matter’,278 and the question of the appropriate remedial response has been clouded by the broader doctrinal issue of the fusion of estoppels.279 In Giumelli v Giumelli,280 the High Court considered satisfaction of the expectation to be the ‘prima facie entitlement’ of the claimant.281 Moreover, Patrick Parkinson has surmised that the expectation will form the starting point ‘where there is a clear promise and a definite expectation’, and that the award of an expectation measure depends on ‘the proportionality between a remedy which fulfils the expectation and the detriment incurred’,282 all of which is remarkably similar to the position under English law. The precedential value of Giumelli was a matter of debate.283 Moreover, in Sullivan v Sullivan, the New South Wales Court of Appeal suggested that expectation relief should not be granted because, inter alia, the promise was gratuitous and did not generate a moral obligation, and because it was made in the context of a familial relationship that had since broken down.284 Nevertheless, in Donis v Donis the Court of Appeal of the Supreme Court of Victoria reaffirmed the position that the appropriate relief is prima facie fulfilment of the expectation because it is intended to recognise what the claimant was led to believe that he would receive.285 The propositions expounded in Sullivan were doubted.   ibid [30].   Commonwealth of Australia v Verwayen (1990) 170 CLR 394. 278   S Gardner, ‘The Remedial Discretion in Proprietary Estoppel’ (1999) 115 Law Quarterly Review 438, 439. 279   See, eg P Parkinson, ‘Estoppel’ in P Parkinson (ed), The Principles of Equity, 2nd edn (Sydney, Lawbook Co, 2003) 714. 280   Giumelli v Giumelli [1999] HCA 10, (1999) 196 CLR 101. 281   ibid 125. 282   Parkinson, ‘Estoppel’ (n 279) [714]. 283   See, eg FR Burns, ‘Giumelli v Giumelli Revisited: Equitable Estoppel, the Constructive Trust and Discretionary Remedialism’ (2001) 22 Adelaide Law Review 123. 284   Sullivan v Sullivan (n 126). 285   Donis v Donis [2007] VSCA 89, (2007) 19 VR 577. 276 277



2.3  The Remedial Discretion  69

In any case, the approach in Australia does not always differ to any great extent as compared with English law in terms of the outcomes produced, and in Weeks v Hrubala Young CJ in Equity cited Jennings v Rice and suggested that even if the general rule is fulfilment of the expectation, this remains subject to an overall proportionality requirement.286 That said, in Sullivan v Sullivan Handley JA doubted whether the ‘minimum equity’ principle was part of Australian law as a result of Giumelli.287 2.3.4.3  English Non-Bargain Cases One case in which the English Court of Appeal deemed it appropriate to concentrate on the detriment suffered is Powell v Benney. When the deceased, Mr Hobday, began to neglect himself, Mr and Mrs Powell looked after him by performing household tasks and giving him money. They also paid for repairs to one of his two properties and took steps to ‘de-clutter’ both of them.288 Mr Hobday had promised to leave the properties to them, which was the basis of their claim. Mr Hobday had also allowed the Powells to hold music and bible lessons in the properties during his lifetime. They had previously conducted the lessons in their shop, and they would have had to renovate it if it had not been for Mr Hobday’s offer. Moreover, Mr Hobday’s cousin sent Mr Powell £5,500 towards his expenses. At first instance, the judge found that the detriment suffered was the expenditure, ‘against which they have had the benefit of using the properties’.289 In Judge Levy QC’s view, ‘justice is done if the claimants are recompensed for the monies which they have expended’.290 The judge took into account the size of the estate and the disappointment they had suffered, and arrived at a total figure of £20,000. In the Court of Appeal, Sir Peter Gibson surmised that the judge had increased the expenditure of £8,830, by ‘an arbitrary amount’,291 illustrating the difficulties with a wide judicial discretion. Although Sir Peter Gibson accepted that Judge Levy QC had ‘not always expressed himself as felicitously as he might’, he concluded that the award of £20,000 was a proper one.292 The Court of Appeal’s criticisms of the first instance judgment in Powell are well made. Nevertheless, significant countervailing benefits, which often occur in carer cases, can greatly decrease the size of the equity generated and make it much less likely that the claimant’s expectation will be   Weeks v Hrubala (n 123) [40].   Sullivan v Sullivan (n 126) [24]. See also Delaforce v Simpson-Cook (n 245) [59] (Handley AJA). 288   Powell v Benney (n 193) [6]. 289   ibid [14]. 290   ibid [14]. 291   ibid [18]. 292   ibid [34]. 286 287

70  Property Law Claims fulfilled.293 Indeed, Sir Peter was surely right to suggest that it would ‘offend common sense’ if such benefits were not taken into account,294 and as a result there will be a much greater focus on the net detriment rather than the expectation in cases involving countervailing benefits. Given that the aim of ensuring proportionality is to address unconscionability, the extent to which the expectation and reliance are attributable to the care recipient is inherently linked to the proportionality question.295 In addition, although not part of the proportionality analysis, the expectations of the care recipient are also relevant, as illustrated in Ottey v Grundy. Robert Walker LJ in Jennings listed other relevant factors that are not present in every case. These were: [M]isconduct of the claimant . . . or particularly oppressive conduct on the part of the defendant[;] . . . the court’s recognition that it cannot compel people who have fallen out to live peaceably together, so that there may be a need for a clean break[;] . . . alterations in the benefactor’s assets and circumstances, especially where the benefactor’s assurances have been given, and the claimant’s detriment has been suffered, over a long period of years; the likely effect of taxation; and (to a limited degree) the other claims (legal or moral) on the benefactor or his or her estate.296

Gardner is of the view that in principle only factors ‘germane to the recipe by which a claim arises at all’ should affect the quantum of relief.297 Of these additional factors, he argues (not entirely convincingly)298 that only conduct fits into this category. The others, Gardner argues, should affect only the mode of relief, and he criticises Robert Walker LJ’s failure to so limit the application of these factors because they are insufficiently linked to unconscionability between the parties. At the very least, he considers that only additional factors present at the time the equity arises should be allowed to affect quantum, although it is surely inevitable that mode and quantum of relief become intertwined. Of course, the conduct of the parties is inextricably linked to the basis of the claim itself, since both the representations and the detrimental reliance are examples of conduct. Moreover, conduct will inevitably affect unconscionability as a whole. For example, if the recipient has acted in a particularly ungrateful way towards the carer, or has deliberately led him to believe that he will receive property and transferred it to someone 293   Mee, ‘The Role of Expectation in the Determination of Proprietary Estoppel Remedies’ prefers the analysis that countervailing benefits represent part-fulfilment of the expectation rather than a reduction in detriment (n 271). 294   Powell v Benney (n 193) [30]. 295   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 500. 296   Jennings v Rice (n 53) [52]. 297   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 501. 298   See, eg section 2.2.2.4 above on conditional representations.



2.3  The Remedial Discretion 71

else, this will underline the unconscionability of her failure to act on her promise. Conversely, if the carer has abused or taken advantage of the property owner, the unconscionability of the recipient’s conduct will be reduced by comparison, notwithstanding sufficient assurances and detrimental reliance. This could be seen as a straightforward application of the principle that claimants must come to equity with clean hands.299 Caution must be exercised when considering the conduct of the parties, and there is a reluctance among the judiciary to delve into the details of personal relationships in property matters, as illustrated in recent decisions involving relief on divorce.300 Moreover, Gardner opines that consideration of conduct for the purposes of quantum must be limited to scenarios where it affects the defendant’s responsibility for the claimant’s position.301 This analysis may be too narrow, since almost all conduct will affect unconscionability, provided it is vis-à-vis the other party. The sacrifice made by the carer will have been greater when the recipient is more difficult to deal with, so it will be more unconscionable for him to have been left without provision. In situations where the claimant has abused his position, he has already taken some ‘reward’ for his efforts, his detriment will be less significant, and the recipient’s conduct is less unconscionable. So while the effect of certain conduct on unconscionability does not always match its gravity when judged objectively, it will always have some impact. The concept of a clean break is often associated with the breakdown of a relationship while both parties remain alive, and in Murphy v Rayner the judge was conscious that the property subject to the unsuccessful claim ‘is Mr Rayner’s home, and the relationship between [him and the claimant carer] has utterly broken down’.302 It can also be relevant where the court is concerned with a proprietary estoppel claim on the estate of a recipient. In deciding not to grant a life interest in the property to the claimant in Campbell v Griffin, the Court of Appeal was influenced by the fact that this would involve a trust of land, which might lead to further disputes as well as being administratively inconvenient and costly.303 Consideration of taxation is, as Gardner puts it, a way of ‘ensuring that the net relief to the claimant is indeed what all the other reckoning says it should be’.304 299   J McGhee et al, Snell’s Equity, 32nd edn (London, Sweet & Maxwell, 2011) [5-15]. See, eg Murphy v Rayner (n 93) [348] (Deputy Judge Jeremy Cousins QC) for a discussion of the ‘clean hands’ principle in an estoppel case. 300   Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618. 301   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 503. 302   Murphy v Rayner (n 93) [360] (Deputy Jeremy Cousins QC). 303   Campbell v Griffin (n 163) [34]. 304   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 501.

72  Property Law Claims Examples given by Gardner of relevant alterations to the defendant’s assets are cases where she has alienated the asset (which might affect the mode of relief) or has become impoverished (which might affect quantum).305 The justification for considering this issue is therefore a pragmatic one. The final factor mentioned by Robert Walker LJ was the existence of any legal or moral claims on the estate of the defendant. Of course, this has the potential to reduce any award given to a carer, although in Jennings the Court of Appeal took into account the fact that the testator did not have any special obligations towards her family. Such consideration seems more appropriate to the exercise of a statutory discretion such as that under the Inheritance (Provision for Family and Dependants) Act 1975, rather than to the application of judicially developed principles to property rights. It seems that the Court will take other claims into account only ‘to a limited extent’,306 and estoppel might not therefore provide the best means through which to decide between competing claims on the care recipient’s finite assets.307 Robert Walker LJ was conscious that it was ‘unwise to attempt any comprehensive enumeration’ of the relevant factors.308 Other factors will therefore be taken into account depending on the nature of the case at hand, and judges will be faced with features that they feel it is inequitable to disregard. Despite the risk of uncertainty, a residual category of considerations is hardly a surprise. Moreover, its scope appears to be limited, and Gardner opines that any given factor must be ‘judicially recognised’ before it can be considered.309 Although the use of the discretion is an attempt to do justice, it will often stop short of fulfilling expectations even in cases where the property owner, now deceased, attempted to transfer the property but was thwarted by external factors. A typical example is Campbell v Griffin, and as we have seen, such a case will not fall into the bargain category unless the detriment is certain. Otherwise, it seems that the equity will not usually be satisfied by giving effect to the claimant’s expectation, however reasonable. Commenting on Campbell, Thompson highlights a similar problem with the satisfaction of the equity as with the reliance requirement.310 If Mr Campbell had been able to pursue a negligence claim against Mr Ascough’s solicitor, he would have been entitled to damages for what he had lost – that is a life interest in the house. This ‘may well have exceeded’ the £35,000 in fact awarded.311   ibid 501–502.   Jennings v Rice (n 53) [52].   See, eg sections 3.5.5 and 5.2.2 below. 308   Jennings v Rice (n 53) [52]. 309   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 504. 310   Thompson, ‘Estoppel: Reliance, Remedy and Priority’ (n 169). 311   ibid 164. 305 306 307



2.3  The Remedial Discretion 73

It could be argued that when the property owner intended the carer to have the property and did not change her mind, the court should at least give the carer a remedy of the value he expected even in the absence of a bargain. On the other hand, the reluctance of the courts to satisfy the full expectation in the absence of a clear bargain could be said to protect those care recipients who lack full awareness of the consequences of their actions. In any event, this discussion further illustrates the arbitrariness of the distinction, and adds fuel to Gardner’s criticism of the dichotomy. Overall, despite its defects, a discretion is the inevitable method by which carers will be given a remedy using proprietary estoppel. Again, the very point of proprietary estoppel is to provide a remedy in spite of the fact that the terms of the relationship between the property owner and the claimant are imprecise. A judge must be given the freedom to determine what those terms might be and how they can be given effect in a fair manner, although there is some merit in Gardner’s claim that the current discretionary framework is not entirely reconcilable with the rule of law.312 While wide discretions are not uncommon in the family law context, an important example being that available to the court distributing property following divorce,313 uneasiness is apparent when a wide range of discretionary factors is allowed to govern the application of property law concepts. The anxiety is illustrated by the reaction to the House of Lords’ decision in Stack v Dowden,314 specifically to Lady Hale’s effectively discretionary approach to quantifying the beneficial interest under a constructive trust of the family home. Dixon, for example, describes that approach as ‘the property lawyers’ equivalent of Pandora’s Box – everything included with only a small hope that this will not lead to endemic uncertainty’,315 and he has not greeted Jones v Kernott316 with much more enthusiasm.317 Similar criticisms could be made of the remedial discretion involved in estoppel, once again demonstrating the limits of property law in solving social problems. That said, Sir Terence Etherton has argued that: The attractiveness of proprietary estoppel is not undermined, but rather is enhanced, by the wide discretion of the court as to the choice of actual remedy (proprietary or personal), which makes it a particularly appropriate and sensitive tool for achieving justice.318   Gardner, ‘The Remedial Discretion in Proprietary Estoppel – Again’ (n 250) 512.   Matrimonial Causes Act 1973, s 25. 314   Stack v Dowden (n 83). See further section 2.5 below. 315   M Dixon, ‘Casenotes Editor’s Casenotes’ [2007] Conveyancer and Property Lawyer 352, 352. 316   Jones v Kernott (n 83). 317   M Dixon, ‘Editor’s Notebook: The Still Not Ended, Never-Ending Story’ [2012] Conveyancer and Property Lawyer 83. 318   Etherton, ‘Constructive Trusts and Proprietary Estoppel: The Search for Clarity and Principle’ (n 16) 125. 312 313

74  Property Law Claims It would be preferable from a carer’s point of view if Robert Walker LJ’s dichotomy were to be explicitly replaced by a single spectrum. Even if it is not appropriate to give effect to a disproportionate expectation, it could be seen as unjust that a carer is more likely to have his expectation fulfilled when there is a bargain in place than when he deserves such an outcome because of the sheer extent of his sacrifice. As with the establishment of the claim, this appears to prejudice the interests of the most altruistic carers. On the other hand, if a claim based on unconscionability of dealing is more easily justifiable than one based on unconscionability of outcome, it could follow logically that the fulfilment of the carer’s expectation is similarly justifiable where there is a bargain in place. 2.4  THE LEGITIMACY OF PROPRIETARY ESTOPPEL

It is apparent that judges are willing to grant remedies to informal carers and other unremunerated workers using the doctrine of proprietary estoppel where something approaching a representation has been made and detrimental reliance has been incurred. Some possible criticisms of the doctrine should be evident from the discussion, particularly as regards doctrinal uncertainties in its application. It is nevertheless possible to question whether a device such as estoppel is in principle legitimate, since it circumvents two important sets of requirements. The first set consists of the restrictions placed upon a valid contract, and the second of formality requirements imposed on the creation of interests in land. These are related to the principles that equity will not perfect an imperfect gift, and that equity will not assist a volunteer. This section evaluates the criticisms of estoppel made on those grounds. 2.4.1  Circumventing the Requirements of a Valid Contract In order to create a valid contract in English law, there must be an agreement between the parties consisting of an offer and an acceptance.319 The arrangement must be of sufficient certainty,320 and it must be supported by consideration.321 The parties to an apparent contract must also intend to create legal relations.322 These requirements of contractual intention323 and certainty may well negate the presence of a valid contract in the sort of scenario with which   See, eg Peel, Treitel on the Law of Contract (n 25) ch 2.   See, eg ibid [2-078]–[2-102]. 321   See, eg ibid ch 3. 322   See, eg ibid ch 4. 323   See, generally, ibid [4-013]–[4-017]. 319 320



2.4  The Legitimacy of Proprietary Estoppel 75

this book is concerned.324 While Andrew Borkowski claims that ‘the courts have tended to regard agreements between family members as showing the required intention to create legal relations where property arrangements are concerned’,325 in Walton v Walton, Hoffman LJ noted that ‘in many cases of promises made in a family or social context, there is no intention to create an immediately binding contract’.326 He also said that there are several reasons why the law was ‘reluctant to assume’ that such an intention existed.327 One reason that he gave for this reluctance was that ‘promises are often subject to unspoken and ill-defined qualifications’ possibly relating to future events, while contracts in general ‘must be performed come what may’.328 Any mechanism addressing unconscionability of dealing in the absence of a contract must inevitably operate in spite of these requirements. For example, Peel distinguishes the operation of proprietary estoppel from that of contract law because it can enforce promises in situations where the terms of the arrangement are vague, there is no intention to create a contract, and there is no consideration.329 Just as the law is cautious in implying a contract, it could be argued that it should be slow to enforce promises through mechanisms other than contract law. In Walton Hoffman LJ justified the operation of estoppel to enforce such promises on the basis that it is backward-looking and ‘asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept’.330 Provided a private law mechanism retains the ability to account for the circumstances in which the dealings between the parties took place, it is justifiable for it to provide a remedy even where there is no contract. In many domestic scenarios, whether involving care or not, it would be unreasonable to expect the protagonists to enter a formal contract.331 Indeed, as explained in chapter three, New Zealand introduced legislation partly in order to mitigate the injustice caused by the requirements of contract law. If it is desirable to provide a remedy for carers using private law,332 it is necessary to do so in spite of non-compliance with the requirements of a valid contract. In fact, a failure to provide such a remedy would leave informal carers without any means of redress, since by definition they provide care in the absence of a contract.   See, eg Jennings v Rice (Ch) (n 215). This case was discussed in section 1.4.1 above.   A Borkowski, Textbook on Succession, 2nd edn (Oxford, Oxford University Press, 2002) 44.   Walton v Walton [1994] EWCA Civ J0414-1, 10. 327   ibid 10. 328   ibid 10. 329   Peel, Treitel on the Law of Contract (n 25) [3-123]. He also points out that the remedy operates differently: [3-152]. See also, eg Evans v Evans [2011] NSWCA 92 [121] (Campbell JA). 330   Walton v Walton (n 326) 10. 331   See, eg Thorner v Major (n 7) [97] (Lord Neuberger). cf Barton, ‘Contract – A Justifiable Taboo?’ in R Probert (ed), Family Life and the Law (Aldershot, Ashgate, 2007). 332   See, generally section 1.2.3 above. 324 325

326

76  Property Law Claims 2.4.2  Circumventing Formality Requirements 2.4.2.1  Policy Reasons for Formalities Proprietary estoppel has survived the restrictions on its operation suggested in Cobbe v Yeoman’s Row Management, at least in the domestic context. This does not free the doctrine from controversy, however, since it can also circumvent statutorily imposed formality requirements, as well as the principle that equity will not perfect an imperfect gift.333 The relevant formalities for present purposes are likely to be those relating to testamentary dispositions,334 and those relating to the transfer of interests in land.335 Lon Fuller famously gave three interrelated ‘functions’ of formality requirements.336 The ‘most obvious’ is the ‘evidentiary function’,337 in that a formal requirement can simply provide evidence of whatever right or claim is being asserted. The second is the ‘cautionary’ function, which highlights the fact that a formality requirement acts ‘as a check against inconsiderate action’.338 The third is the ‘channelling function’,339 in that formalities allow people to conduct their dealings in the context of defined legal categories, benefiting both the individual(s) involved in a transaction and legal administration. In the specific context of wills, John Langbein draws on work by Gulliver and Tilson340 and adds a fourth ‘protective’ function.341 This function relates to the fact the formalities associated with will-making allow the courts retrospectively to protect the deceased testator, at the time the will comes to be executed, from hazards such as undue influence and substitution of a counterfeit will. These policy justifications are reflected in Robert Walker LJ’s view that the rule that a contract for the sale of land must be in writing can be seen as embodying Parliament’s conclusion, in the general public interest, that the need for certainty as to the formation of contracts of this type must in general outweigh the disappointment of those who make informal bargains in ignorance of the statutory requirement.342   Milroy v Lord (1862) 4 De G F & J 264, (1862) 45 ER 1185 (QB).   Wills Act 1837. 335   See, eg Law of Property Act 1925, ss 52–54; Law of Property (Miscellaneous Provisions) Act 1989, s 2. 336   L Fuller, ‘Consideration and Form’ (1941) 41 Columbia Law Review 799. 337   ibid 800. 338   ibid 800. 339   ibid 803. 340   AG Gulliver and CJ Tilson, ‘Classification of Gratuitous Transfers’ (1941) 51 Yale Law Journal 1. It should be noted that the authors consider such a function unnecessary, however. 341   JL Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harvard Law Review 489, 496. 342   Yaxley v Gotts [2000] Ch 162 (CA) 176. 333 334



2.4  The Legitimacy of Proprietary Estoppel 77

Nevertheless, Dixon has alleged that ‘[i]f anything, estoppel claims appear to have increased in frequency as formality rules have been tightened’,343 and he expresses particular concern about the consequences of estoppel for the introduction of electronic conveyancing. This is analogous to the heavy criticism344 levelled at the decision in Pennington v Waine, where the majority appeared to hold that equity could perfect an imperfect gift in circumstances where the revocation of that gift would be unconscionable.345 That said, estoppel does at least have substantive requirements and does not rest entirely on a notion of unconscionability.346 In Thorner v Major, Lord Neuberger opined that: ‘Concentrating on the perceived morality of the parties’ behaviour can lead to an unacceptable degree of uncertainty of outcome’.347 At the same time, he accepted that ‘focussing on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity’.348 2.4.2.2  Formalities and Dispositions of Interests in Land There are a number of formality requirements relating to inter vivos dispositions of property. The general effect of the Law of Property Act 1925 is that legal estates in land may usually be created or conveyed only by deed,349 a declaration of a trust of land is enforceable only if it is evidenced in writing,350 and the creation or disposition of an interest in land351 and a disposition of an equitable interest352 must be performed using signed writing. Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 provides that a contract for the sale or other disposition of an interest in land must also be in writing. The operation of ‘resulting, implied and constructive trusts’353 are explicitly exempted from several of the formality requirements listed above. The question whether proprietary estoppel is or should be accommodated within section 2 of the 1989 Act has recently generated much difficulty.354 343   M Dixon, ‘Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002’ in E Cooke (ed), Modern Studies in Property Law, Vol 2 (Oxford, Hart Publishing, 2003) 168. 344   See, eg Delany and Ryan ‘Unconscionability: A Unifying Theme in Equity?’ (n 209). 345   Penningron v Waine [2002] EWCA Civ 227, [2002] 1 WLR 2075. 346   See section 2.2.4.3 above for a discussion of the substantive relevance of unconscionability. 347   Thorner v Major (n 7) [98]. 348   ibid [98]. 349   Law of Property Act 1925, s 52(1). See Gray and Gray, Elements of Land Law (n 12) 3.1.7 for details of the exceptions to this rule. 350   Law of Property Act 1925, s 53(1)(b). 351   Law of Property Act 1925, s 53(1)(a). 352   Law of Property Act 1925, s 53(1)(c). 353   See, eg Law of Property Act 1925, s 53(2). 354   See, eg Cobbe v Yeoman’s Row Management Ltd (n 5) [29] (Lord Scott); Thorner v Major (n 7) [99] (Lord Neuberger). See also Dixon, ‘Confining and Defining Proprietary Estoppel: The Role of Unconscionability’ (n 114) 414–17 and section 2.2.2.3 above.

78  Property Law Claims The answer is heavily influenced by the closeness or otherwise of the relationship between the doctrine and the constructive trust, which is considered in the next section, and an estoppel has been said to give rise to a form of constructive trust. Moreover, Gray and Gray argue that the lack of explicit provision for estoppel was unintentional,355 a position with which Dixon has expressed agreement.356 Indeed, when proposing the enactment of section 2, the Law Commission saw ‘no cause to fear’ that it would ‘inhibit the courts in the exercise of the equitable discretion to do justice between parties in individual otherwise hard cases’,357 having recognised estoppel as a constituent of that equitable discretion.358 2.4.2.3  Formalities Relating to Wills In relation to testamentary dispositions, of course, the formality generally imposed is that the disposition of property must be made by a valid will.359 A will, inter alia, must usually360 be in writing, signed and witnessed,361 and generally remains revocable during the life of the testator.362 No explicit exceptions are made for implied trusts within the Wills Act 1837 itself. In the light of Thorner, Dixon again expresses concern that proprietary estoppel has been allowed to circumvent the Wills Act for reasons that have not been fully analysed.363 He has suggested that ‘unconscionability’ sufficient to circumvent the Act should be triggered only where there is a ‘double assurance’,364 that is an assurance both that the property right exists or will exist, and that this will occur even in the event of non-compliance with the formality require355   K Gray and SF Gray, Land Law, 7th edn (Oxford, Oxford University Press, 2011) [9-115]. See also Yaxley v Gotts (n 342) but cf Cobbe v Yeoman’s Row Management Ltd (n 5) and M Dixon, ‘Editor’s Notebook’ [2009] Conveyancer and Property Lawyer 85. The Yaxley analysis was applied, eg in Brightlingsea Haven Ltd v Morris [2008] EWHC 1928 (QB), [2009] 2 P & CR 11 in spite of Cobbe. See also Herbert v Doyle [2010] EWCA Civ 1095, [2011] 1 EGLR 119. 356   Dixon, ‘Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002’ (n 343) 173–74. 357   Law Commission, Formalities for Contracts for Sale etc of Land (Law Com No 164, 1987) [5.5]. 358   ibid [5.4]–[5.5]. 359   See, eg Borkowski, Textbook on Succession 317–30 for a discussion of alternative means of succession. 360   See, eg ibid 307–17 for a discussion of ‘privileged wills’. 361   Wills Act 1837, s 9. 362   For full details of the formality requirements relating to wills, see R Kerridge, Parry and Kerridge: The Law of Succession, 12th edn (London, Sweet & Maxwell, 2009) ch 4. cf the New Zealand Wills Act 2007, which empowers courts to validate wills that fail to comply with formality requirements: see N Peart, ‘New Zealand Report on New Developments in Succession Law’ (2010) 14(2) Electronic Journal of Comparative Law [1.2.6]. 363   Dixon, ‘Proprietary Estoppel: A Return to Principle?’ (n 154). 364   Dixon, ‘Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002’ (n 343) 180. See also Dixon, ‘Confining and Defining Proprietary Estoppel: The Role of Unconscionability’ (n 114).



2.4  The Legitimacy of Proprietary Estoppel  79

ments. This appears restrictive, although he insists that the second assurance would be readily implied. In the testamentary context, it is surely the case that the claimant trusted the deceased to comply with the formality requirements. Dixon recognises this and responds that assurances in cases like Gillett were on a ‘come what may’ basis and would therefore satisfy his requirement.365 This is an admirable attempt to explain when there is sufficient unconscionability to generate an estoppel (and where the unconscionability is insufficient), although it is open to accusations of artificiality. Nevertheless, it could be argued that it is not the Wills Act that the estoppel doctrine is truly circumventing, since even a testamentary application of estoppel creates an equity that can bind the care recipient during her life. Since the formality requirements relating to inter vivos transfers of interests in land contain express provisions for the operation of implied trusts, albeit without explicit reference to proprietary estoppel, the Wills Act itself need not pose a problem. Alternatively, it could be argued that the overriding of the Wills Act and similar formalities by the estoppel is an instance of the principle that equity will not permit a statute to be used as an instrument of fraud.366 Philip H Pettit notes how, in spite of the Statute of Frauds, the Court of Chancery historically ‘regarded itself as having power to intervene where the strict application of the statute would actually operate to promote fraud rather than to prevent it’.367 Sarah Nield,368 relying on remarks made by Stamp J in Wakeham v Mackenzie,369 has suggested that a testator who refuses to honour a testamentary promise could be using the Wills Act as an instrument of fraud. The alternative views on whether the Wills Act is being used as an instrument of fraud or estoppel in fact involves an inter vivos disposition are similar to the debates on the conceptual basis of secret trusts.370 David Hayton acknowledges the difficulty as to whether a would-be testator who made neither a transfer of property nor a contract relating to it commits any ‘fraud’ when she ‘exercises [her] prerogative of “stringing along” friends and relatives by promises of testamentary benefactions’.371 He accepts that a remedy should be provided where there is ‘really unconscionable’ behaviour on the part of the deceased, which he appears to 365   Dixon, ‘Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002’ (n 343) 181 fn 69. 366   See, eg R Pearce, J Stevens and W Barr, Law of Trusts and Equitable Obligations, 5th edn (Oxford, Oxford University Press, 2010) 226–27. 367   PH Pettit, ‘Farewell section 40’ [1989] Conveyancer and Property Lawyer 431, 441. 368   Nield, ‘“If You Look After Me, I will Leave You my Estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (n 2) 88. 369   Wakeham v Mackenzie [1968] 1 WLR 1175 (Ch) 1181–82. 370   AJ Oakley, Parker and Mellows: The Modern Law of Trusts, 9th edn (London, Sweet & Maxell, 2008) [4-054]–[4-077]. 371   D Hayton, ‘By-passing Testamentary Formalities’ [1987] Cambridge Law Journal 215, 216.

80  Property Law Claims equate with showing the claimant a will or deed that turns out to have been revoked or to be invalid.372 Taking a more flexible approach in 1988, Martin Davey argued that a remedy in respect of a testamentary promise should be given where there was ‘more than just a gratuitous promise’.373 Specifically, he claimed that where action was taken by the promisee and the action could be connected with the promise, ‘a remedy can be justified quite independently of the law of wills without violating the purposes of the Wills Act formalities’.374 As Roger Kerridge points out, if promises to leave property have been relied upon, ‘the fact that the will is revocable is irrelevant to the detriment which has been suffered’.375 One problem with these arguments about the propriety of estoppel’s ability to circumvent the Wills Act might be the generally accepted fact that an express declaration of trust cannot ordinarily be displaced by arguments relating to the common intention constructive trust.376 This could be analogous to proprietary estoppel displacing a will. That said, in Stack v Dowden, Lady Hale suggested that proprietary estoppel could displace an express declaration of trust,377 implying that proprietary estoppel is even more ‘powerful’ than the common intention constructive trust. Indeed, in Clarke v Meadus Warren J held that: ‘It cannot . . . sensibly be argued that once beneficial interests have been declared in a formal document, those interests become immutable and incapable of being affected by a proprietary estoppel.’378 That position is desirable from a claimant carer’s point of view, but given the overlap between the constructive trust and estoppel doctrines (discussed in section 2.5 below) it could be considered irrational if they are said to differ in this respect. 2.4.3  Concluding Comments While it is clear that estoppel provides a remedy for many informal carers, this section demonstrates that it is much less clear why the doctrine does so. While it may be feasible to explain away some of the anomalies on the

  ibid 217.   M Davey, ‘Testamentary Promises’ (1988) 8 Legal Studies 92, 94.   ibid 94. 375   Kerridge, Parry and Kerridge: The Law of Succession (n 362) [6-10]. 376   Goodman v Gallant [1986] Fam 106 (CA), confirmed in the light of Stack v Dowden by Knowlden v Tehrani [2008] EWHC 54 (Ch). 377   Stack v Dowden (n 83) [49]. For discussion, see A Chandler, ‘Express Declarations of Trust, Rectification and Rescission: Goodman v Gallant Revisited’ [2008] Family Law 1210. cf Clarke v Meadus (n 181) [83] (Warren J) on the remedial constructive trust. 378   Clarke v Meadus (n 181) [56]. See M Pawlowski, ‘Informal Variation of Express Trusts’ [2011] Conveyancer and Property Lawyer 245 for discussion. 372 373 374



2.5  Carers and the Constructive Trust  81

basis of the unique domestic context in which a carer operates,379 that is not necessarily an analytically sound basis for drawing a distinction between cases.380 Mee, for example, admits to being ‘left wondering how to justify the House of Lords’ view that Cobbe should lose but David Thorner should succeed’.381 He expresses concern at the prospect of an increase in costly and bitter litigation between family members caused by a broad estoppel jurisdiction. If the carer is to be provided with a remedy through which unconscionability of dealing by the care recipient can be addressed, more legitimacy, certainty and specificity is arguably necessary. The final substantive section of this chapter considers the constructive trust and its relationship with the estoppel doctrine, including the relevance of that debate for the informal carer. 2.5  CARERS AND THE CONSTRUCTIVE TRUST

2.5.1  The Common Intention Constructive Trust Credit for developing the common intention constructive trust is frequently given to Lord Diplock following his speech in Gissing v Gissing.382 It has, however, been the subject of ‘a long stream of authority’383 in both the House of Lords384 and the Court of Appeal,385 in addition to its more recent trip to the Supreme Court in Jones v Kernott.386 It is a mechanism through which a claimant can assert that the equitable ownership of property differs from the legal ownership based on the ‘express or implied common intention’ of the parties.387 It is often used by unmarried cohabitants asserting a proprietary interest in their former homes following the breakdown of a relationship, albeit not always with success.388 Informal carers tend instead to rely on the estoppel doctrine per se,389 but a carer could conceivably make use of the common intention constructive trust if 379   See, eg Neuberger, ‘The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ (n 113). 380   See, eg Sloan, ‘Proprietary Estoppel: Recent Developments in England and Wales’ (n 48). 381   Mee, ‘The Limits of Proprietary Estoppel: Thorner v Major’ (n 132) 374. 382   Gissing v Gissing [1971] AC 886 (HL). 383   Crown Prosecution Service v Piper [2011] EWHC 3570 (Admin) [7] (Holman J). 384   Pettitt v Pettitt [1970] AC 777 (HL); Lloyds Bank plc v Rosset [1991] 1 AC 107 (HL); Stack v Dowden (n 83). 385   See, eg Eves v Eves [1975] 1 WLR 1338 (CA); Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211; Morris v Morris [2008] EWCA Civ 257, [2008] Family Law 521; James v Thomas (n 177); Fowler v Barron [2008] EWCA Civ 377, [2008] 2 FLR 831. 386   Jones v Kernott (n 83). 387   Pearce, Stevens and Barr, Law of Trusts and Equitable Obligations (n 366) 314. 388   See, infamously, Burns v Burns [1984] Ch 317 (CA). 389   See further section 2.5.2.

82  Property Law Claims he can show an express, implied or possibly imputed common intention that the equitable interests possessed by himself and the care recipient differ from their respective legal interests in certain property. One of the most difficult aspects of the developing law on the common intention constructive trust is that the two cases most recently decided at the highest judicial level, Stack v Dowden and Jones v Kernott, have concerned situations where the relevant property is held in the parties’ joint names albeit without an express declaration as to their respective bene­ ficial interests. This left open the question of how an equitable interest was to be asserted by a claimant against a defendant possessing the sole legal title to the relevant property. It could be argued that the sole legal owner scenario is rather more significant since it concerns the claim of a legal non-owner who may lack an entitlement altogether rather than the relative sizes of the equitable interests possessed by two legal owners. The sole owner situation also seems closer to the care scenarios discussed in the rest of this chapter. Following Lloyds Bank plc v Rosset,390 the common intention of shared ownership necessary to prove a constructive trust could be evidenced by express discussions or a financial contribution towards the purchase price by a party whose name did not appear on the legal title. In Lord Bridge’s words, it was ‘at least extremely doubtful whether anything less [would] do’.391 It is unclear whether the majority of the House of Lords in Stack intended to liberalise or restrict the earlier analysis in Rosset. In Stack, Lady Hale held that that ‘at least in the domestic consumer context’392 there is a strong presumption that ownership in equity follows the position at law. It was confirmed in Jones v Kernott that ‘the task of seeking to show that the parties intended their beneficial interests to be different from their legal interests was not to be “lightly embarked upon”[393]’.394 This presumption apparently applies whether legal title is held by one party or by more than one,395 albeit that of course: ‘The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally . . . a “common intention” constructive trust’.396 This suggests that a legal non-owner who is not a beneficiary under an express trust has to rebut a strong presumption in order to demonstrate that he has any (equitable) interest at all.397 That said, the strength of the presumption has been undermined by the myriad factors that are relevant to its   Lloyds Bank plc v Rosset (n 384).   ibid 133. 392   Stack v Dowden (n 83) [58] (Lady Hale). 393   ibid [68]. 394   Jones v Kernott (n 83) [12] (Lord Walker and Lady Hale). 395   Stack v Dowden (n 83) [56] (Lady Hale). 396   Jones v Kernott (n 83) [17]. 397   See, eg James v Thomas (n 177). 390 391



2.5  Carers and the Constructive Trust  83

displacement on the basis of common intention,398 by the suggestions that the law had ‘moved on’ since Lord Bridge’s remarks in Rosset399 or that he ‘set [the] hurdle rather too high’,400 and by the fact that the presumption was said to be displaced in Stack and Jones themselves as well as in subsequent cases.401 Whatever the state of the law regarding sole owners,402 a pertinent question for present purposes might be the relevance of care to the size of an interest generated by virtue of a constructive trust where diverging legal and equitable interests are alleged and the court, as instructed in Stack and Jones, seeks to ‘ascertain the parties’ common intentions as to what their shares in the property would be, in the light of their whole course of conduct in relation to it’.403 Given the breadth of Lady Hale’s list of factors relevant to quantification in Stack v Dowden, it was certainly possible following that case that care could be taken into account when determining the size of a carer’s interest. Those factors include, for example. ‘any advice or discussions at the time of the transfer’ (into joint names, as in the case at hand), ‘the purpose for which the home was acquired’ and ‘the nature of the parties’ relationship’.404 The potential for care to be regarded has probably only increased as a result of Jones v Kernott’s acceptance that ‘where it is clear that the beneficial interests are to be shared, but it is impossible to divine a common intention as to the proportions in which they are to be shared . . . the court is driven to impute an intention to the parties which they may never have had’.405 In such circumstances, it may well be argued that care provided would be considered when ‘deducing what the parties, as reasonable people, would have thought at the relevant time’, albeit that ‘regard would obviously be had to their whole course of dealing in relation to the property’.406 These formulations highlight the considerable uncertainty present in the current law. For the reasons outlined in the next section, however, the estoppel doctrine may still be much more relevant to the ‘pure’ carer for the foreseeable future. That is in spite of the fact that at one time, it was thought that the   Stack v Dowden (n 83) [69] (Lady Hale).   ibid [26] (Lord Walker).   ibid [63] (Lady Hale). 401   See, eg Adekunle v Ritchie [2007] EW Misc 5 (EWCC), [2007] BPIR 1177 but cf Fowler v Barron (n 385). 402   Crown Prosecution Service v Piper (n 383) was a ‘sole owner’ case decided after Jones v Kernott, but it was eventually found that the non-legal-owner wife had contributed financially to the property’s purchase such that a common intention could readily be inferred following Rosset ([79] (Holman J)). cf Dixon, ‘Editor’s Notebook: The Still Not Ended, NeverEnding Story’ (n 317) 84. In Geary v Rankine [2012] EWCA Civ 555, Lewison LJ confirmed that a common intention could be ‘inferred from conduct’ in a sole legal owner case ([21]). 403   Jones v Kernott (n 83) [13] (Lord Walker and Lady Hale). 404   Stack v Dowden (n 83) [69]. 405   Jones v Kernott (n 83) [31] (Lord Walker and Lady Hale). 406   ibid [33] (Lord Walker and Lady Hale). 398 399 400

84  Property Law Claims House of Lords (or now the Supreme Court) might assimilate the common intention constructive trust and the estoppel doctrine, since it has been said that they are ‘in many respects . . . indistinguishable’.407 This possibility, and its apparent rejection, is also discussed in the following subsection. 2.5.2  The Relationship between the Doctrines and its Relevance to the Carer The relationship between proprietary estoppel and the common intention constructive trust is a topical issue in family and property law.408 The suggestion of unification was criticised by many academics. For example, Gardner objected to the apparent transplantation of the proprietary estoppel approach into the constructive trust doctrine that was performed by the Court of Appeal in Oxley v Hiscock,409 since the fictional nature of intention used in the constructive trust context made the two distinct.410 Thompson opined that while the constructive trust effectively enforces an agreement already made and prevents unjust enrichment, proprietary estoppel is about conferring a remedy that is appropriate in the circumstances.411 Similarly, Pawlowski argued that the choice of remedy is far more developed in proprietary estoppel, with the constructive trust giving rise only to a beneficial interest in land and not any other property right or sum of money,412 although he did acknowledge the possibility that the constructive trust could ‘evolve into a form of remedial jurisdiction with prospective qualities akin to proprietary estoppel’.413 Thompson was more resistant to this. While he accepted that proprietary estoppel should play a role in relation to non-purchasing behaviour in constructive trust cases, he was of the view that the equation of the two doctrines would impede progress.414 Following Stack v Dowden, the House of Lords was apparently content for the concepts to remain distinct,415 and Pawlowski expressed the view that the English courts were ‘a long way’ from assimilating the two doctrines.416 Despite previous remarks suggesting that ‘there is much   Gray and Gray, Elements of Land Law (n 12) [9.2.118].   For a recent detailed account of the relationship, see P Matthews, ‘The Words Which Are Not There: A Partial History of the Constructive Trust’ in C Mitchell (ed), Constructive and Resulting Trusts (Oxford, Hart Publishing, 2010) 24–60. 409   Oxley v Hiscock (n 385). 410   S Gardner, ‘Quantum in Gissing v Gissing Constructive Trusts’ (2004) 120 Law Quarterly Review 541. 411   MP Thompson, ‘Constructive Trusts, Estoppel and the Family Home’ [2004] Conveyancer and Property Lawyer 496. 412   M Pawlowski, ‘Beneficial Entitlement – No Longer Doing Justice?’ [2007] Conveyancer and Property Lawyer 354. 413   ibid 363. 414   Thompson, ‘Constructive Trusts, Estoppel and the Family Home’ (n 411). 415   Stack v Dowden (n 83). 416   Pawlowski, ‘Beneficial Entitlement – No Longer Doing Justice?’ (n 412) 362. 407 408



2.5  Carers and the Constructive Trust  85

common ground between’ the two doctrines and that ‘in the area of a joint enterprise for the acquisition of land . . . the two concepts coincide’,417 Lord Walker admitted in Stack that he was now ‘rather less enthusiastic’ about the aggregation of proprietary estoppel and the constructive trust.418 Echoing some of the commentators cited above, Lord Walker opined that proprietary estoppel involved an ‘equitable claim against the conscience of the “true” owner’, and could often be satisfied through a monetary award.419 The constructive trust, on the other hand was concerned with identifying the true owner(s), along with the size of their interests. This seems to give effect to the distinction between ‘frustrated bargain’ and ‘frustrated expectation’ elucidated by Gray and Gray.420 Lord Walker’s analysis also appears consistent with the view that the constructive trust is institutional rather than remedial, in contrast to estoppel.421 The discretionary approach adopted by Lady Hale in quantifying the interest under a constructive trust in Stack in the domestic context itself casts doubt on this distinction,422 an impression cemented by the explicit permission of imputation in Jones v Kernott.423 That said, in both cases her Ladyship was anxious to reject an approach based entirely on fairness424 and as we have seen she also combined the wide range of factors with an apparently strong presumption that equity follows the law.425 In Powell v Benney, Sir Peter Gibson utilised Lord Walker’s obiter remarks from Stack and decided that the case before him definitely required the satisfaction of an equity generated by detrimental reliance and not the identification of the owners.426 This did not prevent claimants in conjugal relationships from pleading estoppel as an alternative to a constructive trust in subsequent cases, and the Court of Appeal at least entertained such submissions.427 That said, one High Court judge concluded that ‘it is wrong in principle to confuse the two distinct equitable remedies of proprietary estoppel and constructive trust, and to regard the former as a species of the latter’.428 This contrasts with the view that estoppel is ‘one way of creating a constructive trust’.429   Yaxley v Gotts (n 342) 176.   Stack v Dowden (n 83) [67]. 419   ibid [67]. 420   Gray and Gray, Elements of Land Law (n 12) [9.2.119]. 421   See, eg P Ferguson, ‘Constructive Trusts – A Note of Caution’ (1993) 109 Law Quarterly Review 114. 422   Stack v Dowden (n 83) [69]. See, eg T Etherton, ‘Constructive Trusts – A New Model for Equity and Unjust Enrichment’ [2008] Cambridge Law Journal 265. 423   Jones v Kernott (n 83). 424   Stack v Dowden (n 83) [61]; Jones v Kernott (n 83) [46]. 425   Stack v Dowden (n 83) [56]–[59]; Jones v Kernott (n 83) [12]. 426   Powell v Benney (n 193) [24]. 427   See, eg Morris v Morris (n 385) [28]–[29] (Sir Peter Gibson). 428   MacDonald v Frost (n 99) [15] (Judge Geraldine Andrews QC). 429   KR Handley, Estoppel by Conduct and Election (London, Sweet & Maxwell, 2006) [11-019]. 417 418

86  Property Law Claims Following Lord Walker’s remarks in Stack, and as demonstrated in Powell, it seemed that the primary avenue to relief for the ‘pure’ carer would, for the foreseeable future, lie in the law of proprietary estoppel. This could be said on the basis that it is more likely that he will be claiming a remedy against the conscience of the care recipient as opposed to asserting that he was already a beneficial owner of the property along with the recipient during the period in which care was provided. This is reinforced by Gray and Gray’s suggestion that a broader range of contribution ‘inclusive of the more intangible elements of domestic commitment and endeavour’ appears to be relevant for the estoppel doctrine.430 Sir Terence Etherton has expressed some extra-judicial doubts about whether detrimental reliance must be proven at all in a domestic setting for the purposes of a constructive trust following Stack,431 although it must surely form an important aspect of the unconscionability on which a constructive trust is based. The story does not end with Lord Walker’s remarks in Stack, however, since following the restrictive analysis of proprietary estoppel in Cobbe some commentators thought that constructive trusts would have to perform the function previously undertaken by the estoppel doctrine in cases involving carers.432 In Thorner, the more generous interpretation given to the scope of the doctrine in the domestic context in all likelihood made this unnecessary. Even so, Lord Scott (whose analysis in Cobbe caused the most fear about the future utility of estoppel in the first place) said that he found it ‘easier and more comfortable’ to hold that David’s claim was established via a remedial constructive trust.433 This is controversial in the light of previous pronouncements by senior judges that the remedial constructive trust is not a part of English law.434 Rather, as noted above, the English conception of the constructive trust is generally taken to be institutional, such that the court ‘merely recognises a pre-existing equitable interest’.435 That said, Sir Terence Etherton has argued extra-judicially that the constructive trust imposed in Stack, albeit nominally based on the common intention of the parties, is in fact remedial,436 even though he subsequently appeared to retreat from that position in a judgment postdating Jones v Kernott.437 In any case, the constructive trust to which Lord   Gray and Gray, Elements of Land Law (n 12) [9.2.120].   Etherton, ‘Constructive Trusts and Proprietary Estoppel: The Search for Clarity and Principle’ (n 16). The principle does not appear to have been discussed in the Supreme Court’s judgments in Jones v Kernott (n 83). 432   McFarlane and Robertson, ‘The Death of Proprietary Estoppel’ (n 5) 456–57. 433   Thorner v Major (n 7) [14]. 434   See, eg Re Polly Peck International plc (in administration) (No 2) [1998] 3 All ER 812 (CA) 823–25 (Milett LJ). 435   Pearce, Stevens and Barr, Law of Trusts and Equitable Obligations (n 366) 315. 436   Etherton, ‘Constructive Trusts – A New Model for Equity and Unjust Enrichment’ (n 422). 437   Crossco No 4 Unlimited v Joran Ltd (n 48) [84]. 430 431



2.5  Carers and the Constructive Trust  87

Scott referred was the one ‘created by the common intention or understanding of the parties regarding the property’ and ‘recognised at least since Gissing v Gissing’.438 It could therefore be an error to read too much into his use of the word ‘remedial’. In Shirt v Shirt, Judge Purle QC distinguished the ‘conventional constructive trust’ from the ‘remedial constructive trust of the kind discussed by Lord Scott in Thorner v Major, and concluded that ‘the balance of the authorities binding on [him] is firmly against the existence of a remedial constructive trust as such’.439 He did concede, however, that the process of giving effect to an estoppel ‘has features which seem to many to be indistinguishable from a constructive trust of the remedial kind’.440 Whatever the precise nature of the constructive trust he invoked in Thorner, and in something of a contrast to Lord Walker’s remarks in Stack, Lord Scott was of the view that estoppel was ‘the obvious remedy’ in cases where ‘the representations relied on relate to the acquisition by the representee of an immediate, or more or less immediate, interest in the property in question’.441 Conversely, and crucially for present purposes, he saw cases relating to inheritance rights as being ‘difficult’ to ‘square with the principles of proprietary estoppel’.442 In these cases, on his account, the constructive trust approach was more appropriate because it could deal more easily with conditional representations. That said, in Cook v Thomas, Lloyd LJ opined that the minority status of Lord Scott’s opinion did not provide a ‘very promising start’ to a claim based on the common intention constructive trust in a testamentary promise-type case.443 If a carer did seek to utilise the constructive trust in preference to proprietary estoppel, at least in its ‘common intention’ guise, issues of context would similarly come to the fore.444 Counterintuitively, however, it seems that the ‘domestic’ context in which a carer is likely to operate will cause more difficulty for his claim if he is not a legal owner because of the presumption that equity follows the law.445 A carer who had contributed to the purchase of a property held in the care recipient’s sole name could invoke a resulting trust analysis to claim an interest in the property. The care itself, however, would not be taken into account in determining the size of his interest and his share of the property would be proportionate only to his financial contribution.446 The   Thorner v Major (n 7) [20].   Shirt v Shirt (n 57) [9]; cf Clarke v Meadus (n 181) [82] (Warren J). 440   Shirt v Shirt (n 57) [9]. 441   Thorner v Major (n 7) [20]. 442   ibid [20]. 443   Cook v Thomas [2010] EWCA Civ 227 [105]. 444   See, eg Laskar v Laskar [2008] EWCA Civ 347, [2008] 1 WLR 2695. 445   Sloan, ‘Proprietary Estoppel: Recent Developments in England and Wales’ (n 48) [38]– [53]. 446   See, eg Gray and Gray, Elements of Land Law (n 12) ch 7.2. 438 439

88  Property Law Claims inflexibility associated with resulting trusts led the majority in Stack, and the Supreme Court in Jones, to express a preference for the constructive trust approach where a ‘domestic context’ was involved.447 In Australia, the constructive trust is explicitly remedial. In a recent decision concerning proprietary claims by carers, Saliba v Tarmo, Nicholas J opined that ‘claims of a constructive trust and of equitable estoppel may be indistinguishable where the claimant’s expectations and the element of detriment to the claimant will have been defined with reasonable clarity’.448 In that case, Nicholas J declared the existence of a constructive trust in favour of the claimants in respect of half of the deceased care recipient’s estate. He did so on the basis that there had been a common intention that the claimant carers would inherit that amount. That intention was said to have been relied upon by the claimants to their detriment, since they provided more extensive care than they had done previously and felt duty bound to care for the deceased because of the common intention. Nicholas J also held that the circumstances of the case would have justified the imposition of a remedial constructive trust of the type that has previously been recognised in Australia in the context of de facto relationships, which are based on failed joint domestic endeavours.449 The deceased was judged to have refused unconscionably to recognise the interest claimed. Nicholas J held that the same relief could be awarded by the application of the principles of equitable estoppel. Moreover, Lord Neuberger interprets Giumelli as holding that a constructive trust will arise wherever equitable estoppel is established, even if it is not necessarily proprietary in nature.450 Other Australian judges, however, have sought to maintain a distinction between equitable estoppel and constructive trusts based on joint ventures, including as to the appropriate remedy.451 This debate is likely to continue, and the two concepts will always be at least comparable. Nevertheless, in England at least, a carer is more likely to succeed by pleading estoppel. 2.6  CONCLUSION: THE LIMITATIONS OF ESTOPPEL

This chapter has sought to evaluate proprietary estoppel and the constructive trust as remedies for the informal carer. The conclusion to emerge is that proprietary estoppel is a useful weapon in the armoury of such carers. This is true of the law in both England and Wales and Australia and,   See section 1.4.2 fn 193.   Saliba v Tarmo (n 135) [38]. 449   For a summary, see Gray and Gray, Elements of Land Law (n 12) [7.3.83]–[7.3.84]. 450   Neuberger, ‘Thoughts on the Law of Equitable Estoppel’ (n 29) 235. 451   See the cases discussed in Barkehall Thomas, ‘Families Behaving Badly: What Happens when Grandma gets Kicked Out of the Granny Flat?’ (n 1). 447 448



2.6  Conclusion: The Limitations of Estoppel  89

while there are distinctive features of the doctrine in each jurisdiction, it is difficult to express a general and conclusive view on which is more generous to the carer. Indeed, the New South Wales Court of Appeal was content to rely on Thorner v Major alongside several other English authorities in Delaforce v Simpson-Cook among other cases.452 This may illustrate a tendency to minimise the differences in the doctrine’s application between the two jurisdictions. A carer is likely to be able to satisfy the detriment and unconscionability requirements, despite the uncertainty surrounding these concepts. In fact, a ‘pure’ carer might find it easier to do so than a conjugal cohabitant or family member of the care recipient. Since there is at least some suggestion that the nature of the carer’s relationship with the recipient will affect what it would be reasonable to expect the carer to do, the relationship will thereby have an impact on the unconscionability of the recipient’s failure to give effect to her promise. While this consideration of the relationship between the parties could prejudice those who develop an emotional attachment to the recipient, which is intuitively undesirable on policy grounds, the relevance of the relationship also reflects the idea that the justification for a remedy is less strong where there is a familial or quasifamilial tie. The other requirements of the doctrine can deny a remedy to two categories of carer whom many would consider particularly deserving. One category comprises those who care in the absence of any assurances about their economic well-being. The unconscionability of the failure to provide for the carer can diminish the importance of a firm representation, but the care recipient, or the property owner if they are different people, must show at least some inclination to benefit the carer. While this consequence of the representation requirement may be desirable in the sense that it protects vulnerable recipients from arbitrary deprivation of their property, it also demonstrates the limits of property law in providing a solution for the informal carer. In a wider sense, it illustrates the limits of a mechanism addressing unconscionability of dealing, and those limits would be welcomed by some on the basis of autonomy. While Kerridge acknowledges that ‘morally’ a friend or family member who acts to his detriment in the absence of a promise is ‘deserving too’,453 he also admits that the focus of estoppel is to prevent the property owner from reneging on a promise. The second category of claimant that estoppel can leave without a remedy includes the carer who cannot show that he relied on any assurances in deciding to commence or continue the work. While the switching of the 452   Delaforce v Simpson-Cook (n 245), applied, for example, in Hobsons Bay City Council v Gibbon & Ors [2011] VSC 140, (2011) 181 LGERA 253. See also Evans v Evans [2011] NSWCA 92 [108] (Campbell JA); Tadrous v Tadrous [2012] NSWCA 16 [41] (Meagher JA). 453   Kerridge, Parry and Kerridge: The Law of Succession (n 362) [6-12].

90  Property Law Claims burden of proof for reliance to the defendant is obviously significant, and some link between the representation and detriment is required in order to make the doctrine tenable, there remains a possibility that some individuals are sufficiently altruistic to fall foul of the reliance requirement. It may be thought that this limitation is equally characteristic of a mechanism addressing unconscionability of dealing but, as demonstrated in the next chapter, it does not apply so strictly in relation to the statutory enforcement of testamentary promises in New Zealand. The courts have been known to utilise proprietary estoppel to secure wider public policy objectives. For example, in Sledmore v Dalby, the equity held by the defendant in respect of the claimant’s home was said to have been extinguished by his rent-free occupation of the house for many years.454 According to Gray and Gray, the court was influenced by the fact that the claimant was on benefits and therefore the mortgage on her existing property was effectively being paid by the state.455 Despite this, and Cooke’s argument that ‘the law of estoppel should never be static’,456 there is a limit to the flexibility of the doctrine. Lord Walker has recognised that: ‘Building a house on land which belongs to someone else is a very different factual situation from a lodger undertaking the increasingly onerous task of caring for his elderly landlords in the expectation that he will have a home for life’.457 This recognition, which permeates many of the authorities, is to be welcomed, although there are limits to its effectiveness. Moreover, due to Lord Walker’s remedial dichotomy, a carer’s difficulties do not necessarily end even where he is able to demonstrate the required inchoate equity. Although the expectations of some carers will be unrealistic and unjustified, they will be more likely to have them satisfied (as opposed to being compensated for their detriment) where they have entered a clear bargain with the deceased than where their efforts genuinely merit it. As before, this places the more mercenary carer in a better position than the carer who simply feels morally obliged to look after the care recipient. Overall, the estoppel doctrine is an incomplete solution to the predicament of the informal carer and, as highlighted in section 2.4 above, there are serious concerns surrounding its legitimacy. Some carers may be able to utilise the constructive trust, but this device as currently conceived is less likely to be available to a ‘pure’ carer, and in all likelihood it is subject to similar limitations as the doctrine of estoppel. Property law may therefore be a useful, but less than ideal, source of a remedy for the informal carer. The next chapter considers whether a statutory method of addressing unconscionability of dealing, such as that currently available in New Zealand, would be preferable.   Sledmore v Dalby (n 221).   Gray and Gray, Elements of Land Law (n 12) [9-099]. 456   Cooke, The Modern Law of Estoppel (n 28) 171. 457   Walker, ‘Which Side “Ought to Win”?’ (n 6) 231. 454 455

3 Statutory Enforcement of Testamentary Promises

T

3.1  INTRODUCTION AND BACKGROUND TO THE NEW ZEALAND LEGISLATION

HE LAW REFORM (Testamentary Promises) Act, enacted in its current form in New Zealand in 1949 and subsequently amended, facilitates the granting of discretionary remedies in respect of testamentary promises relating to work or services. The Act, thought to be unique to New Zealand, is a substantial re-enactment of a single section in a 1944 statute.1 It was branded ‘pioneering’ by Sir Robin Cooke during the single occasion on which it was considered by the Judicial Committee of the Privy Council.2 One judge saw the Act as imposing a moral obligation not ‘to obtain services under some form of deceit’.3 Similarly, Richardson J considered that there was ‘a flavour of unjust enrichment of the estate at the expense of the promisee if services performed in return for a testamentary promise are not rewarded’.4 The Act, described as a ‘beneficent statute’,5 aimed to remedy the injustice caused by the requirement of certainty before a contractual claim could be binding on the estate of a promisor, and the requirements of formality where the promise related to land. Indeed, William Patterson claims that the impetus for statutory intervention was provided by judicial comments on the inadequacy of the common law.6 Although the Privy Council in Re Welch noted the possibility of a proprietary estoppel claim, it opined that ‘shortcomings in the evolution of the common law can still result in hard cases in England’.7 The estoppel 1   Its precursor was the Law Reform Act 1944 (NZ), s 3: see AG Davis, ‘The Law Reform (Testamentary Promises) Act 1949’ (1950) 13 Modern Law Review 353. 2   Re Welch [1990] 3 NZLR 1 (PC) 4. 3   Parata v McGowan [1994] NZFLR 937 (HC) 943 (Williamson J). 4   McCormack v Foley [1983] NZLR 57 (CA) 68. 5   Kite v May [2001] NZFLR 514 (HC) [19] (Hammond J). 6   WM Patterson, Law of Family Protection and Testamentary Promises, 3rd edn (Wellington, LexisNexis, 2004) [13.1]. See, eg Nealon v Public Trustee [1949] NZLR 148 (CA) 157 (Kennedy J), 159–60 (Finlay J). 7   Re Welch (n 2) 4 (Sir Robin Cooke).

92  Statutory Enforcement of Promises case law has developed since these comments were made, but as a result of the Act few claimants now use the general law of contract, estoppel or unjust enrichment to claim a reward in New Zealand once the potential defendant has died,8 and one judge has made the exaggerated claim that ‘there is no close analogy between the statutory basis for testamentary promises claims . . . and the elements of estoppel’.9 Other claims may be available to testamentary promise claimants, although they are required to elect which remedy should be enforced.10 This chapter outlines the various elements of a claim under the 1949 Act, comparing it with the utility of an English estoppel claim in the process. The power to award relief on the basis of an unfulfilled testamentary promise is contained in section 3 of the 1949 Act. Section 3(1) of the Act is a lengthy provision,11 but this chapter attempts to adopt a structured approach in considering its various elements. The subsection provides that: Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate.

The promise is the first element of the claim, and it is the subject of section 3.2. Proposed reforms to the legislation that would, in certain circumstances, remove the promise requirement and render the Act a mechanism remedying unconscionability of outcome as well as of dealing are considered in section 3.3. Section 3.4 then outlines the nature of the services or work that qualify under the Act, before section 3.5 considers the principles governing the remedy. 8   New Zealand Law Commission, Succession Law: Testamentary Claims (Preliminary Paper No 24, 1996) [292]. Rennie v Hamilton [2005] NZCA 202 is an example of a case pleaded on the basis of both the 1949 Act and a constructive trust. 9   Saunders v New Zealand Guardian Trust Company Ltd [2010] NZHC 1417 [47] (Dobson J). 10   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(8). 11   See the remarks of Tipping J in Re Collier-Cambus (decd) [1994] NZFLR 520 (HC) 524.



3.2  The Promise 93

Generally, it should be noted that the courts have adopted a benevolent and purposive approach to the interpretation of the requirements. It has been said that ‘[t]he remedial nature of the Act must be central in the Court’s deliberations as that is the object of the statute’.12 An attempt is made in this chapter to synthesise some of the propositions emerging from the case law under the Act. Nevertheless, one judge was reluctant to have much recourse to cases previously decided under it, since such authorities ‘are very much on their own facts and individual human circumstances pertaining to family dynamics and relationships can and do play important roles in the decisions on which Courts settle’.13 This chapter argues that there are considerable advantages of a statutory means of enforcing testamentary promises such as the 1949 Act, as compared to the use of proprietary estoppel. 3.2  THE PROMISE

3.2.1  The Meaning of ‘Promise’ Under section 3(1) of the 1949 Act, the relevant enforceable promise can be express or implied.14 The term ‘promise’ explicitly includes ‘any statement or representation of fact or intention’.15 The promise required by the Act need not generate an enforceable contract under the general law, since the Act applies ‘whether or not a claim for . . . remuneration [for the services provided] could have been enforced in the lifetime of the deceased’.16 Indeed, Nield has argued that ‘the whole purpose of the statute would be frustrated’ if contractual requirements were imposed.17 Although a case decided under an earlier incarnation of the Act suggested that there had to be ‘mutual promises of a contractual character’,18 the Privy Council held in Re Welch that the current version’s definition of ‘promise’ extends ‘beyond the usual contractual meaning of that word, and even beyond the common meaning’.19 This is in spite of the fact that the deceased must have had contractual capacity in order for a promise to qualify.20

  Wilson v Wilson [2007] NZFLR 555 (FC) [63] (E Smith J).   Re Hanlon [2000] NZFLR 227 (HC) 229 (Williams J). See also BD Inglis, New Zealand Family Law in the 21st Century (Wellington, Brookers, 2007) [31.3]. 14   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1). 15   Law Reform (Testamentary Promises) Act 1949 (NZ), s 2. 16   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1). 17  S Nield, ‘“If You Look After Me, I will Leave You my Estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (2000) 20 Legal Studies 85, 94. 18   Nealon v Public Trustee (n 6) 161 (Kennedy J). 19   Re Welch (n 2) 7. (Sir Robin Cooke). 20   Public Trustee v Bick [1973] 1 NZLR 301 (CA). 12 13

94  Statutory Enforcement of Promises Requirements of writing for the transfer of certain interests in land are also expressly overridden by the Act.21 This explicitly protects the legislation from the sorts of debates currently taking place in England and Wales surrounding the legal footing of estoppel.22 The definition of promise is sufficiently wide to include statements that the testator will see the claimant ‘right’,23 and the Act applies ‘whether or not the [promised] provision was to be of a specified amount or was to relate to specified real or personal property’.24 This circumvents some of the difficulties with regard to certainty recently experienced in English estoppel cases.25 In Allender v Gordon, the claim was made out because the words used were ‘sufficient to constitute in the eyes of lay-people . . . a promise to make a testamentary provision’.26 As things stand, the promise must relate to provision in a will.27 This contrasts with the point at which an estoppel equity is generated, as illustrated by Gillett v Holt.28 Nevertheless, in Rennie v Hamilton, Gendall J considered it possible that ‘a promise to make a testamentary provision can be implied in circumstances where the promise is to ensure that the claimant receives some benefits . . . during the lifetime of the promisor, but such benefits are not forthcoming’.29 The Court of Appeal did not interfere with any aspect of his judgment on appeal.30 In Hamilton v Hamilton, a promise by the deceased to ‘look after’ his carers was held to relate to a testamentary disposition.31 That inference was said to be ‘inevitable’ because the statement was made by ‘an aged man, without available assets or other capacity to “look after” the carers’.32 The New Zealand Law Commission proposed the removal of the requirement that the promise be testamentary in nature,33 albeit leaving intact the principle that the claim must be brought after the promisor’s death. It is certainly illogical to require that the promise be testamentary in nature given that the extent to which the deceased remunerated the claimant during her lifetime can be used to   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(2)(b).   See section 2.4 above. 23  S Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (2007) 58 Northern Ireland Legal Quarterly 287, 299. 24   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1). 25   See, eg section 2.2.2.3 above. 26   Allender v Gordon [1959] NZLR 1026 (CA) 1030 (Cleary J). 27   Wischnewsky v Public Trustee [1995] NZFLR 166 (DC). One of the various claims in Humphrey v New Zealand Guardian Trust [2004] NZFLR 179 (HC) involved a promise that was not testamentary, with the result that a claim under the Act was ‘misconceived’: [40] (William Young J). 28   See section 2.2.2.4 above. 29   Rennie v Hamilton [2004] NZFLR 270 (HC) [33]. 30   Rennie v Hamilton (CA) (n 8). 31   Hamilton v Hamilton [2003] NZFLR 883 (HC). 32   ibid [50] (Baragwanath J). 33  New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (New Zealand Law Commission Report 39, 1997) [C124]. 21 22



3.2  The Promise 95

defeat the claim. As regards the timing of the claim, however, it should be remembered that a large number of English estoppel claims are brought after death even though the ‘equity’ is generated sooner, and there are policy reasons why testamentary claims are preferable to inter vivos ones.34 In spite of the ‘broad view’ taken as to the overall meaning of a promise, in Cain v Nyhon O’Dwyer J was quick to emphasise that the burden placed on the claimant is ‘a heavy one’.35 The requirement to prove a promise of some kind inevitably leads to evidential difficulties, particularly given the likelihood that a promise will have been made in informal circumstances some time before the claim is brought to court. Nevertheless, as E Smith J put it in Wilson v Wilson, such problems ‘do not operate of themselves to mean an unperfected promise will not be remedied’.36 Rather, ‘they simply challenge a claimant’s ability to succeed’.37 A series of pieces of evid­ ence that would be insufficient in themselves can be combined to justify the inference of a qualifying promise,38 although (potentially in contrast to estoppel) acquiescence is unlikely to be enough given the wording of the Act. It is the requirement of a promise that most distinguishes a claim under the 1949 Act from one for family provision from a care recipient’s estate.39 Young J recognised this in Humphrey v New Zealand Guardian Trust.40 He emphasised that it was not for him to ‘“make” for [the deceased], in the guise of testamentary promises awards, the sort of testamentary provision which [the deceased] would have made if he had acted as a just and wise testator’.41 That said, he accepted the relevance of concepts such as ‘moral duty’ in, for example, assessing the evidence in a testamentary promise case.42 The Law Commission proposed reforms that would enable a claim to be made by a ‘contributor’ even in the absence of a promise. The proposals are discussed in section 3.3 below. A more technical criticism of the promise requirement is that while the effect of a promise has different consequences in other areas of the law, the Commission claimed that the Act obscures this difference.43 This could be partially solved by excluding claims under the general law where a claim could be brought under the Act. Currently, as noted in section 3.1, the claimant can elect which remedy to enforce in relation to a qualifying promise under the Act, although   See, eg sections 5.2 and 6.4.   Cain v Nyhon [2007] NZFLR 1055 (FC) [21]. 36   Wilson v Wilson (n 12) [63]. 37   ibid [63]. 38   See, eg ibid [152] (E Smith J). 39   See, generally ch 5. 40   Humphrey v New Zealand Guardian Trust (n 27). 41   ibid [65]. 42   ibid [65]. 43   New Zealand Law Commission, Succession Law: Testamentary Claims (n 8) [295]. 34 35

96  Statutory Enforcement of Promises double recovery is not allowed.44 It is interesting to note that the English Law Commission considered it necessary to exclude claims under the general law if and when a statutory scheme for cohabitants is introduced, because of the complexity that would otherwise result.45 As a matter of logic, if a statutory scheme is intended to remedy perceived deficiencies in the general law, its effectiveness is likely to be undermined if claims under that law are still permitted. The New Zealand Commission suggested that the court should have the power to order that contractual and statutory claims are heard concurrently. Moreover, a claimant would generally be prohibited from bringing an additional claim in estoppel, under a constructive trust or on the basis of unjust enrichment, although the court could give leave to bring such a claim in commercial cases.46 3.2.2  An Objective Approach? An objective approach is adopted when ascertaining whether or not a rele­vant promise has been made, such that the promise is construed from the point of view of the claimant’s reasonable belief regarding the testator’s intentions.47 Patterson has questioned this feature of the law, on the basis that it is doubtful that the claimant’s state of mind should be given greater weight than that of the defendant, especially since the claimant’s motive for performing the services is said to be irrelevant.48 The current approach could be stricter than the English law on estoppel, where increased focus has been placed upon the subjective understanding between the parties following Thorner v Major.49 Nevertheless, the reasonableness of the claimant’s interpretation of the promise in the circumstances of the case is still likely to be crucial even there. If the claimant is sceptical as to whether the deceased will carry out the promise, it is sufficient for the purposes of the 1949 Act that the deceased made the promise with the intention that it be believed by the claimant.50 This is somewhat analogous to the idea that an estoppel representation must be ‘intended to be taken seriously’, as laid down by Lord Hoffmann   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(8).  Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007) [4.132]–[4.146]. Wells’ proposed ‘Inheritance (Testamentary Promises) Act’ (Wells, ‘Testamentary Promises: A New Approach’ (PhD thesis, King’s College London 2007) ch 9) does not strictly prevent claims under general law but (rather ambitiously) provides that such claims should be treated as claims under the proposed Act (s 12). 46   See section 3.3 below. 47   Heathwaite v NZ Insurance Co Ltd [1951] NZLR 6 (SC). 48  Patterson, Law of Family Protection and Testamentary Promises (n 6) [13.15]. 49   See section 2.2 above. 50   Edwards v New Zealand Insurance Co Ltd [1971] NZLR 113 (HC). 44 45



3.2  The Promise 97

in Thorner.51 It has also been suggested, however, that when seeking to demonstrate a link between the promise and services ‘it is reasonable to expect that a promisee relying on a promise when providing services would suggest some qualification on the freedom of the promisor to resile’.52 This raises similar difficulties to Lord Walker’s remarks in Cobbe v Yeoman’s Row Management in the light of widespread knowledge of the need for a will.53 Where the deceased is not proved to have made a promise but the claimant thought she had done so, Patterson has noted that the court is likely to infer that a promise was made, provided the service performed was consistent with one, unless there is ‘compelling evidence to the contrary’.54 In an estoppel claim, as we have seen, proof of a representation is considered important but some inference was permitted in Thompson v Foy.55 Where the deceased has attempted to leave property to the claimant but failed, this may be important evidence of a relevant promise. For example, in Powell v Public Trustee it was said to be a ‘significant feature’ of the case that the deceased had signed a copy of his will that had been amended consistently with the promise.56 This was concluded notwithstanding that the will itself had not been witnessed and was therefore invalid. 3.2.3  The Relationship between the Promise and the Services There must be some ‘nexus or linkage’57 between the promise made by the deceased and the services provided by the claimant.58 In general, it seems that the claimant must at least be aware of the promise when performing the services,59 although the New Zealand Court of Appeal in Byrne v Bishop held that this was not required where the promise was made for the benefit of a child who was unaware of it, so long as the parent who provided the service was aware of the promise during the testator’s lifetime.60 The concept of a ‘nexus’ between the promises and the services is somewhat analogous to the reliance requirement applied to estoppel claims. As demonstrated in the last chapter, a symptom of the reliance requirement in proprietary estoppel claims is that it can attach a great deal of signific­ance to the timing of a representation.61 This problem is avoided under the 1949   See section 2.2.2.1 above for discussion.   Saunders v New Zealand Guardian Trust Company Ltd (n 9) [47] (Dobson J).   See section 2.2.2.4 above. 54  Patterson, Law of Family Protection and Testamentary Promises (n 6) [13.15]. 55   See section 2.2.2.1 above. 56   Powell v Public Trustee [2002] NZCA 276, [2003] 1 NZLR 381 [3] (Tipping J). 57   Byrne v Bishop [2001] NZCA 309, [2001] 3 NZLR 780 [9] (Blanchard J). 58   For a discussion of the treatment of ‘services’ under the Act, see section 3.3 below. 59   Coyne v Haines [2005] NZFLR 678 (FC) [37] (Murfitt J). 60   Byrne v Bishop (n 57) [9] (Blanchard J). 61   See section 2.2.3 above. 51 52 53

98  Statutory Enforcement of Promises Act, however, since it applies ‘[w]hether the services were rendered or the work was performed before or after the making of the promise’.62 This allows the testator to make a promise ‘in gratitude for past services’.63 Moreover, according to the Court of Appeal’s decision in Jones v Public Trustee, a promise can also emerge over time and it is unnecessary ‘to fix any particular point of time at which [an] arrangement developed into a promise within the meaning of the Act’.64 This is somewhat similar to the idea that it is impossible to pinpoint the moment at which a representation becomes binding for the purposes of estoppel.65 The focus is on the testator’s motive for making the promise, rather than on the claimant’s motive for providing the services.66 This means that ‘services going beyond the norm will not be disqualified because their motivation derives from family affection’,67 and in Hamilton v Hamilton it was described as a ‘virtue’ that the services were ‘provided out of love and duty rather than for reward’.68 Nevertheless, the suggestion that the services must go ‘beyond the norm’ itself means that ‘family affection’ may prejudice claims.69 In Byrne v Bishop the motive of the person doing the work was said to be of little importance, and it ‘can really be of no importance’ in cases of reward for things done in the past.70 In comments that to some extent echo those of Robert Walker LJ in Campbell v Griffin,71 Blanchard J considered that it ‘would be repugnant if the fact that the services or work were performed out of a generous spirit and not for mercenary reasons or in the hope of reward should count against claimants’.72 Despite the similarities in the comments made by Robert Walker LJ and Blanchard J, the contexts in which they were made are somewhat different. In a proprietary estoppel claim, the claimant’s motives are relevant in demonstrating reliance upon the representation made. The Act therefore eliminates a major problem faced by the altruistic carer and is better suited to the particular factual context of caring. That said, as we have seen, the relaxation of the reliance requirement through the reversal of the burden of proof means that mixed motives are now acceptable in successful proprietary estoppel claims. Patterson opines that there should be no difference between the awards made where the claimant acted with an expectation of a reward and where   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(2).   Re Beazer (decd), Armstrong v McKay [2001] NZFLR 557 (HC) [44] (Durie J).   Jones v Public Trustee [1962] NZLR 363 (CA) 373 (North J). 65   See section 2.2.2.4 above. 66   See, eg Re Fagan (decd), Walker v Fagan [1999] NZFLR 222 (HC). 67   Cain v Nyhon (n 35) [30] (O’Dwyer J). 68   Hamilton v Hamilton (n 31) [51] (Baragwanath J). 69   See section 3.3.2 below. 70   Byrne v Bishop (n 57) [10] (Blanchard J). 71   See section 2.2.3.1 above. 72   Byrne v Bishop (n 57) [10]. 62 63 64



3.2  The Promise 99

he acted entirely altruistically, provided ‘the pattern of the claimant’s life is equally disturbed’ in each case.73 A logical extension of this argument could conceivably justify an approach based on unconscionability of outcome, rather than of dealing, since it reduces the significance of the promise.74 There is a also a relaxation in the relevance of the deceased’s motives under the Act, since the promise need only be made in part in return for the services and thus a claim is not precluded if ‘family ties and other considerations may also have influenced the making of the promise’.75 That said, in Re Welch, the Privy Council gave weight to a finding that the ‘predominant motive’ of the deceased in making the representations to the claimant, his stepson, was affection for the claimant and his family and ‘the natural tendency to give effect to ordinary family expectations’.76 In Cain v Nyhon, the judge held that the services needed to be an ‘operative cause’ of the promise.77 Consistently with this principle, the promise in PZ v JC was found to be ‘made out of concern for [the claimant] and the circumstances she faced’,78 coupled with some pressure from the claimant,79 such that it did not qualify under the Act. In the later case of Webb v Smith, Ellis J held that the deceased person must at least be aware of the service, recognise its value and must have made ‘a connection in her mind between that benefit and her . . . promise’.80 Re Welch demonstrates both the importance of the relationship between the parties in assessing a claim and the interrelationship between all the elements of the claim. The close relationship between the claimant and the testator, and the countervailing benefits received by the claimant’s family from the testator, caused the Privy Council to doubt whether a relevant promise had been made at all and whether services been provided for the purpose of the Act, thus limiting the extent of the possible remedy. In the end, however, a relatively modest award was made. In Humphrey v New Zealand Guardian Trust, Young J appeared to allow the strong nexus between the promise and the services to compensate for his scepticism about whether the services were sufficiently abnormal to justify a claim.81 This is analogous to the position in estoppel claims, where strong instances of one requirement can to an extent compensate for uncertainties in another.82  Patterson, Law of Family Protection and Testamentary Promises (n 6) [13.16].   See further section 3.3 below.   Byrne v Bishop (n 57) [10] (Blanchard J). 76   Re Welch (n 2) 8 (Sir Robin Cooke). 77   Cain v Nyhon (n 35) [40] (O’Dwyer J). 78   PZ v JC [2006] NZFLR 97 (HC) [56] (Druce J). 79   cf, eg section 7.1 below on the relationship between an estoppel claim and undue influence. 80   Webb v Smith [2011] NZHC 1512 [35]. 81   Humphrey v New Zealand Guardian Trust (n 27). 82   See section 2.2.1.4 above. 73 74 75

100  Statutory Enforcement of Promises 3.2.4  The Beneficiary of the Promise When the New Zealand Law Commission considered this area of the law, they thought that the promise must be one to benefit the provider of the services personally, such that he could not nominate someone else to receive the benefit.83 Despite the views of the Law Commission, Byrne v Bishop held that the Act did not require the services to come from the claimant.84 The Court of Appeal was conscious that: It would be a very natural reaction of persons whose caring nature led them to render services or perform work . . . to respond to an announcement by the recipient of a desire to provide a testamentary reward by saying ‘Don’t do it for me; if you feel you must do something do it for my child’.85

In Re Beazer (decd), Armstrong v McKay, Durie J advanced the more general proposition that: ‘There is nothing in the Act to require that the work must be done by the plaintiffs, or exclusively by the plaintiffs[,] so that A may work for B on a promise to pay C’.86 Patterson has argued that such a principle should be applied only in the context of a family or where the provider of the services might reasonably be treated as a proxy for the claimant. In particular, he warns against extending the Act to cover promises to third parties ‘where knowledge of that promise never reached the claimant’.87 Even so, the Law Commission’s Draft Succession (Adjustment) Act expressly allows a claim in relation to a promise to benefit someone other than the contributor.88 On the other hand, the wording of the Act itself suggests that the services must be provided for the testator whose estate is the subject of the claim, and that only the testator can make a relevant promise.89 This implies that there is less flexibility here than in the estoppel cases.90 In Cotton v Griffin, however, the High Court apparently accepted that a promise made by a parent of the deceased but ‘acceded to and agreed to’ by the deceased could in itself justify provision out of the estate.91 In Tombs v Macassey, moreover, the Court of Appeal considered that the promises made by the deceased were ‘clearly made on behalf of himself and his wife’, such that the substantial provision received by the claimant out of   New Zealand Law Commission, Succession Law: Testamentary Claims (n 8) [296].   Byrne v Bishop (n 57).   ibid [9] (Blanchard J). 86   Re Beazer (n 63) [49]. 87  Patterson, Law of Family Protection and Testamentary Promises (n 6) [13.12]. 88   Draft Succession Adjustment Act, s 34, published in New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33). 89   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1); Webb v Smith (n 80) [32] (Ellis J). 90   See section 2.2.2.2 above. 91   Cotton v Griffin [2001] BCL 495 (HC). 83 84 85



3.3  Reforms to the ‘Promise’ Requirement 101

the wife’s estate could be considered when ascertaining whether her husband had failed to fulfill the promises.92 3.3  PROPOSED REFORMS TO THE ‘PROMISE’ REQUIREMENT

This section considers proposed reforms to the testamentary promises legislation that would, in certain circumstances, render it a mechanism remedying unconscionability of outcome as well as of dealing. The proposals are deliberately considered immediately following the discussion of the current ‘promise’ requirement before the next section of the chapter resumes the discussion of the law currently in force. In 1996 the New Zealand Law Commission considered it a ‘significant defect’ of the 1949 Act that the claimant must show that a promise has been made to him.93 As discussed in section 3.2, this limitation is similar to that imposed by the representation requirement in proprietary estoppel cases.94 The Commission proposed that a ‘contributor’ should be able to make a claim under a new piece of succession legislation (published in the form of a Draft Succession (Adjustment) Act) either where an express promise has been made to him or where ‘it is unjust for the estate of the deceased to retain the benefit without provision being made for the contributor’.95 The requirement of an express promise in the first limb of the proposed new claim is stricter than the current Act,96 although it would no longer be necessary to show a promise to make testamentary provision.97 In fact, the effect of the ‘retained benefit and injustice category’ would liberate the courts from searching for an implied promise, a search that may succeed only on an artificial construction of the facts. This has some similarities to the difficulties faced by the English courts in finding a ‘common intention’ for a constructive trust following Stack v Dowden,98 albeit that the Supreme Court in Jones v Kernott liberated courts from having to do so where such an intention could not realistically be inferred.99 It is, of course, easier to justify the removal of such a requirement in a statutory scheme than a property law doctrine. Nevertheless, any relaxation would transform the Act from a method of enforcing testamentary promises to a

92   Tombs v Macassey (CA174/02, 18 June 2003) [2003] New Zealand Law Journal 325 [18] (Blanchard J). 93   New Zealand Law Commission, Succession Law: Testamentary Claims (n 8) [295]. 94   See, eg section 2.2.2.5 above. 95   Draft Succession (Adjustment) Act, s 31(1)(b). 96   New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33) [C125]. 97   ibid [C124]. 98   Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432. 99   Jones v Kernott [2011] UKSC 53, [2011] 3 WLR 1121.

102  Statutory Enforcement of Promises method of imposing a compensatory obligation on testators, with signific­ ant policy implications. The various elements of a claim based on the second limb of the proposed new scheme are discussed in the following subsections. 3.3.1  The Provision of a Benefit100 In order to make a claim based on the unjust retention of a benefit, the contributor would have to show that the deceased was aware that the benefit had been provided or was ‘not sufficiently competent’ to be aware of its provision,101 that the benefit was in fact retained102 and that ‘it is just that provision be made for the contributor in return for the benefit’.103 A ‘benefit’ is defined as including both work and services.104 It is said to have value where even where it does not do so objectively if it is accepted by the now-deceased person as having value, or relieves necessary or desirable expenditure.105 The benefit is deemed to have been ‘retained’ provided ‘the circumstances of that deceased or the deceased’s estate have not so changed since the benefit was provided that it is inequitable to require that provision in return for it be made from the estate’.106 That said, a filter on claims is facilitated by the exclusion of services that did not involve ‘significant expenditure of time, effort or money’.107 These basic principles appear generous to a carer, and the prospect of a claim against the estate of a care recipient who lacks capacity at the time when care is provided raises significant ethical issues. On the other hand, as demonstrated in the next subsection, the carer would still have to point to factors justifying the claim even once a relevant benefit is proved to have been conferred.108

100   cf the understanding of ‘work and services’ under the current Act, considered in section 3.4 below. 101   Draft Succession (Adjustment) Act, s 35(1)(a). 102   Draft Succession (Adjustment) Act, s 35(1)(b). 103   Draft Succession (Adjustment) Act, s 35(1)(c). 104   Draft Succession (Adjustment) Act, s 8. 105   Draft Succession (Adjustment) Act, s 8. cf section 4.2 below on the circumstances in which care services constitute a valid ‘enrichment’ for the purposes of an unjust enrichment claim. 106   Draft Succession (Adjustment) Act, s 35(4). 107   Draft Succession (Adjustment) Act, s 8. 108   See section 4.3 below on the relevant ‘unjust factors’ in the English unjust enrichment context, and cf the differing Canadian approach considered in section 4.5.



3.3  Reforms to the ‘Promise’ Requirement 103

3.3.2  Factors Justifying a Remedy A number of factors rendering provision for the claimant ‘just’ are explicitly included in the draft Act, although the court can decide that the retention of the benefit is unjust ‘in the special circumstances of the case and for any other reason’.109 The express factors are a hope or expectation of provision of which the deceased was aware,110 the ‘pressure of a moral or social obligation to provide the benefit’,111 or a need of the benefit on the part of the deceased combined with either an absence of anyone else who might reasonably have been expected to provide it or an unreasonable failure by such a person to do so.112 Many carers would be able to bring themselves within these principles, although they are qualified by the limitations outlined in the next section. 3.3.3  Limitations on Claims The proposed extension to cover cases where nothing approaching a promise had been made would be subject to a number of limitations.113 If the claimant conferred the benefit ‘gratuitously’ he would not be allowed to succeed.114 The Commission were anxious to avoid creating ‘a charter for claims by people who perform family and good-neighbourly services and later change their mind about not being paid’.115 This would exclude many largely altruistic carers. Although the Commission equate gratuitousness with an intention that the benefit be a gift,116 a carer who provided services without arranging remuneration cannot necessarily be said to have ‘changed his mind’ about payment given that a decision to confer a benefit without payment may not be entirely voluntary in a domestic context.117 Moreover, it is ironic that an express statement by one of the claimants in Byrne v Bishop to the effect that she did not expect to be rewarded in fact strengthened her case, since it was held to demonstrate the required ‘linkage’ between the services provided and the promise.118 Admittedly, however, it could be a step too far to adjust private property rights in favour of a carer who expressly disavowed any potential payment claim when no promise was in fact made to him.   Draft Succession (Adjustment) Act, s 35(3)(d).   Draft Succession (Adjustment) Act, s 35(3)(a). 111   Draft Succession (Adjustment) Act, s 35(3)(b). 112   Draft Succession (Adjustment) Act, s 35(3)(c). 113   Draft Succession (Adjustment) Act, s 35. 114   Draft Succession (Adjustment) Act, s 35(2)(b). 115   New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33) [87]. 116   ibid [C131]. 117   See, eg section 1.2.3.3. 118   Byrne v Bishop (n 57) [48] (Blanchard J). 109 110

104  Statutory Enforcement of Promises Conversely, the Law Commission’s proposed claim will not succeed where the testator has made it clear that the carer will not be paid, if there is an agreement between them to that effect or if the nature of the arrangement is otherwise clear from the circumstances.119 This broadly drawn exception was intended to cover situations where there was a good reason to believe that the testator would not reward the claimant.120 It apparently sends the amended Act back in the direction of a method of enforcing testamentary promises rather than a means of rewarding deserving carers. Perhaps the injustice is less grave where, for example, a carer is expressly told that he will not be rewarded, theoretically leaving him free to stop providing care at any stage. On the other hand, it is significant that the intentions of the deceased person are not regarded as conclusive for the purposes of a family provision claim.121 Thankfully, silence would not necessarily be taken as an indication that no reward is intended, and the Commission recognised that it could easily be caused by ‘the closeness of the relationship and their unwillingness to spell out terms which people bargaining at arm’s length would not hesitate to include’.122 Where such a silence has not been kept, the intentions signalled would be given effect, at least on the question whether there is to be a reward at all. 3.3.4 Conclusion The Commission’s proposed reforms provide an interesting model with which to evaluate the idea of addressing some forms of unconscionability of outcome, particularly in a way that is not limited by reference to maintenance and future need as family provision claims usually are.123 This is in spite of the fact that the proposal is significantly limited in other respects. The likelihood of implementation, however, must be assessed in the light of the fact that the Commission’s Draft Succession (Adjustment) Act was published around a decade and a half ago. It should also be borne in mind that the Commission did not consider that their proposals would effect a significant change in New Zealand law because they reflected the law of unjust enrichment in that jurisdiction.124 In fact, their Draft Act specifically states that it ‘codifies’ the law of unjust enrichment as it applies to cases within its remit, and precludes claims in unjust enrichment (including through a constructive trust or estoppel)   Draft Succession (Adjustment) Act, s 35(2)(a).   New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33) [87]. 121   See, eg section 5.2.1.2 below. 122   New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33) [88]. 123   See, generally ch 5. 124   See, eg New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33) [C118]. 119

120



3.4  The Services or Work 105

unless the court gives leave and is satisfied that the relationship between the parties was commercial rather than personal.125 The underdeveloped state of that law in England (considered in chapter four) limits the potential for export of the proposals. Finally, the Law Commission’s motivation in suggesting the effective removal of the promise requirement from the 1949 legislation was to restrict family provision claims made by those applicants, particularly adult children, who had not made some form of contribution.126 Such a restriction could be considered unnecessary in England and Wales since claims by adult children are already limited by reference to maintenance.127 Impetus for reform may not therefore be present to the same extent. It will become clear as the book progresses that remedies addressing unconscionability of outcome are often more difficult to justify than those designed to redress unconscionability of dealing. Nevertheless, such a justification can be found, and it is only by remedying unconscionability of outcome that some of the most altruistic carers can be supported. The remedy that would be awarded under the Commission’s proposal where there is no promise is considered in section 3.5.6, following discussion of the current principles governing the remedy under the Act. The next section returns to discussion of the present law by considering the ‘services’ or ‘work’ relevant to the enforcement of a promise under the 1949 Act. 3.4  THE SERVICES OR WORK

3.4.1  The Meaning of ‘Services’ or ‘Work’ The ‘services’ or ‘work’ requirement in section 3 of the 1949 Act can be said to reflect what the New Zealand Law Commission called the ‘wellestablished rule that the courts do not assist people who have not given anything in return for the promises on which they rely’.128 While section 3.2.3 questioned the extent to which a claimant must have ‘given’ something in return for the promise, the very nature of the Act’s purpose means that he will in any case have provided some service to the deceased if his claim is to have any chance of success. The courts, however, have been generous in relation to the nature of ‘services’ or ‘work’129 considered relevant to a claim under the Act, and again they have done so with regard to the remedial purpose of the Act.130   Draft Succession (Adjustment) Act, s 39(3).   New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (n 33) [77]. 127   See sections 5.4.1 and 5.4.9 below. 128   New Zealand Law Commission, Succession Law: Testamentary Claims (n 8) [303]. 129   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1). 130   Tucker v Guardian Trust [1961] NZLR 773 (SC) 776 (McCarthy J). 125 126

106  Statutory Enforcement of Promises As with the detriment requirement in estoppel cases,131 a claimant who meets the definition of ‘carer’ used in this book is unlikely to encounter difficulties in satisfying this element of the New Zealand Act. If there is a need to draw a distinction between services and work, the concept of ‘services’ is more likely to be relevant for present purposes. ‘At its simplest’, as one judge put it, ‘a service is an act of assistance’.132 The mere fact that the value of an act is intangible does not prevent it from being considered a service,133 and there are many cases involving care decided under the Act.134 Even travelling a significant distance to spend time with the promisor can constitute a service.135 This is mirrored by the consideration of detriment in proprietary estoppel, although the Act concentrates on the benefit conferred rather than the detriment suffered by the claimant.136 Services are generally assessed with reference to the value that the deceased placed upon them, and judges are sympathetic to the fact that ‘[i]ntangible services . . . invariably produce consequences of intangible value’.137 In Kite v May, it was considered particularly significant that the caring work undertaken prevented the need for the deceased to go into a nursing home, although the unpleasant nature of the work was also emphasised.138 Similarly, in Powell v Public Trustee it was said that the claimant had ‘materially contributed to [the deceased]’s ability to remain on the farm until his death’, something that would have been particularly important to him.139 The ability to stay in their own homes will be of inherent value to many care recipients, and the recognition of this as a relevant service strengthens the position of the carer under the Act. Controversially, in Hamilton v Hamilton, it was recognised that because of the deceased’s ‘conservatism as regards the contributions of women’, his valuation of the provision promised was likely to be ‘well short of the commercial value of the services’.140 This has some parallels with the notion of subjective devaluation, discussed in relation to unjust enrichment in section 4.2 below. An award was nevertheless made to the relevant claimant in Hamilton. Where the deceased requested a precise service, the court is likely to assume that the service was of value to her even if it was unusual.141 There   See section 2.2.4.1 above.   Wilson v Wilson (n 12) [105] (E Smith J). 133   Byrne v Bishop (n 57). 134   An early example is Allender v Gordon (n 26). 135   Re Archer [1990] 3 NZLR 737 (HC) 743. 136   Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 23) 300; Wells, ‘Testamentary Promises: A New Approach’ (n 45) 314. 137   Wilson v Wilson (n 12) [97] (E Smith J). 138   Kite v May (n 5). 139   Powell v Public Trustee (n 56) [20] (Tipping J). 140   Hamilton v Hamilton (n 31) [51] (Baragwanath J). 141   See, eg Wilson v Wilson (n 12). 131 132



3.4  The Services or Work 107

must be some limit to this principle, however. In Wilson v Wilson, a request for an account of the prevailing weather conditions was given as an example of a non-qualifying ‘service’.142 Caution is necessary in attaching significance to unusual requests, since it may indicate a loss of capacity. Such requests are not particularly relevant for present purposes, however, since a response to them is unlikely to constitute care. Care does not necessarily have to be provided over a particularly long period in order to qualify. In Cain v Nyhon, care provided by the claimant over the final weeks of her mother’s life was said to be relevant, although it did take place in a general context of companionship.143 That said, the following subsection discusses the difficulties of founding a claim under the Act on the basis of familial services. 3.4.2  The Importance of the Relationship between the Parties The court will take into account the nature of the relationship between the parties in considering whether services have in fact been provided for the purposes of the 1949 Act, as English judges have done when evaluating detriment in estoppel cases.144 According to the Judicial Committee of the Privy Council in Re Welch, ‘some straining of the scope of the Act is required to bring within the concept of services the natural incidents and consequences of life within a close family group’.145 In Welch itself, because of the familial relationship between the parties and the fact that the claimant’s own family had received countervailing benefits, the Privy Council regarded the evidence of services as ‘tenuous’.146 It distinguished the case from that of Hawkins v Public Trustee,147 where the claimant, the grandson of the deceased, performed a great deal of work for the deceased and even changed his name in order effectively to become the deceased’s adopted son. In contrast to the case at hand, according to the Privy Council, Hawkins had involved ‘much more than a normal relationship between grandson and grandfather’.148 This illustrates that while the relationship between the parties is relevant, ‘the distinction is not between family on the one hand and strangers on the other’.149 Familial services are relevant provided they go beyond expectations, although the Court of Appeal recently confirmed that, in spite of  ibid [102] (E Smith J).   Cain v Nyhon (n 35). 144   See section 2.2.4.4 above. 145   Re Welch (n 2) 7 (Sir Robin Cooke). 146   ibid 7 (Sir Robin Cooke). 147   Hawkins v Public Trustee [1960] NZLR 305 (SC). 148   Re Welch (n 2) 7 (Sir Robin Cooke). 149   Re Beazer (n 63) [36] (Durie J). See also Re Fagan (decd), Walker v Fagan (n 66). 142 143

108  Statutory Enforcement of Promises objections from some judges, it was a logical consequence of Re Welch that ‘services lovingly given should be worth less than services contractually given’.150 Some account of the particular circumstances of the family in question is taken in determining what is ‘normal’.151 It might be said that there is a risk of inherent contradiction in attempting to formulate a subjective view of normality. Nevertheless, in Coyne v Haines, Murfitt J expressed concern that ‘it would be quite unfair to judge a family by different standards than those standards of communication and care which had been adopted and practised by that same family’.152 In that case, which was an application to strike out a claim, the claimant’s ‘maintaining and fostering cordial relationships with his stepmother and stepsiblings’ could be a ‘service’ in the context of a family ‘scarred with division, with suspicions and resentments’.153 In Thwaites v Keruse, it was held that ‘[c]ompanionship, affection [and] cohabitation’ could legitimately be considered ‘services’ where ‘the promisor is elderly or lonely or in poor health’,154 the paradigm situation in which almost all carers operate. A daughter’s ‘moral support and companionship’ was held in Cain v Nyhon to fall within the Act, since her mother was elderly and depressed and suffered from increasingly poor health.155 On the other hand, Thwaites v Keruse confirmed that such actions would not be considered ‘services’ in the case of young people ‘simply sharing together the pleasures of each other’s company in a common household’,156 and in Saunders v New Zealand Guardian Trust Company it was considered significant that ‘when [the deceased] was in need of companionship, and then progressively more physical support, the plaintiffs were not available to provide it because they lived elsewhere’.157 The importance of the characteristics and circumstances of the parties was underlined in Powell v Public Trustee,158 where it was emphasised that ‘[t]he companionship factor should be seen in the light of the fact that [the testator] was a man who kept his own company’ and was something of a loner.159 The claimant was effectively the only person that the testator allowed to help him on his farm, and ‘somehow managed to build up a rapport with him’.160 Similarly, in Byrne v Bishop, the Court of Appeal emphasised that the testator in Re Welch ‘far from being a lonely and   Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980 [50] (Hammond J).   Re Sellars (decd), Bailey v Public Trustee [1996] NZFLR 971 (DC) 978 (Sommerville J).   Coyne v Haines (n 59) [34]. 153   ibid [44] (Murfitt J). 154   Thwaites v Keruse (1993) 11 FRNZ 19 (CA) 23 (Hardie Boys J). 155   Cain v Nyhon (n 35) [31] (O’Dwyer J). 156   Thwaites v Keruse (n 154) 23 (Hardie Boys J). 157   Saunders v New Zealand Guardian Trust Company (n 9) [49] (Dobson J). 158   Powell v Public Trustee (n 56). 159   ibid [10] (Tipping J). 160   ibid [10] (Tipping J). 150 151 152



3.4  The Services or Work 109

isolated figure, was a successful businessman’ and therefore contrasted sharply with the deceased in the case at hand.161 On the facts of Re Welch, a small award was made, since the appeal concerned only the quantum of the remedy. This suggests that there is a close connection between cases where the acts performed are not sufficient to constitute ‘services’ in the first place, and those where the acts merit only a small award. This is analogous to the relationship between detriment and the remedy in proprietary estoppel, illustrated in Powell v Benney.162 Nield suggests that this search for care going beyond that expected of a family member was caused by the previously high number of claims by conjugal cohabitants under the Act.163 Indeed, there is some indication of a lack of sympathy for the cohabitant compared to the ‘pure’ carer, as highlighted in the English estoppel cases.164 On the other hand, in Holland v Knapp, Ryan J drew a distinction between claims brought by unmarried partners and those brought by spouses under the Act.165 Although no promise was found on the facts, the judge considered it significant that ‘the conscious decision was made to continue to live together as husband and wife’.166 The claimant was held not to have provided relevant services under the Act because, in somewhat antiquated terminology, it was said that ‘the services she rendered were within the bounds of her duties and the deceased’s expectations’.167 It is not clear that this distinction is sustainable given the equalisation of spouses and certain de facto partners in relation to property division.168 In any case, the fact that testamentary promise claims by cohabitants are now rendered much less necessary by the amended Property (Relationships) Act 1976 may mean that judges will become less wary of attaching significance to familial services and, as with estoppel, a genuine carer is likely to be in a stronger position than a family member who provides at most limited care.

  Byrne v Bishop (n 57) [49] (Blanchard J).   [2007] EWCA Civ 1283, (2007) 151 SJLB 1598. See section 2.3.2 above. 163   Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 23) 301. cf N Peart, ‘New Zealand Report on New Developments in Succession Law’ (2010) 14(2) Electronic Journal of Comparative Law, section 1.2.5, which suggests that courts were lenient about the nature of the relevant service precisely because cohabitants had no other claim. 164   See sections 2.2.3.3 and 2.2.4.4 above. 165   Holland v Knapp [2004] NZFLR 1135. 166   ibid [28] (Ryan J). 167   ibid [29]. 168   Property (Relationships) Act 1976 (NZ). 161 162

110  Statutory Enforcement of Promises 3.4.3  Failure to Make Provision and Remuneration A promise is enforceable under the Act only ‘to the extent to which the deceased has failed to make [the promised] testamentary provision or otherwise remunerate the claimant’.169 There are two elements to this part of section 3(1), although there is an overlap between them. 3.4.3.1  Failure to Make Provision Where the promise relates to a particular asset, it may be thought that it will be obvious whether or not the deceased has fulfilled his promise. The matter will be equally clear-cut where the claimant makes no testamentary dispositions in favour of the applicant at all. This becomes more difficult where the promise itself is unspecific and more of a judgment on the matter is necessary. Moreover, in Re Beazer Durie J suggested that as a result of the fact that the remedy is now discretionary,170 ‘testators may fulfil their obligations by making some provision other than that promised, provided it is reasonable having regard to all the circumstances of the case’.171 It is unclear whether the judge was referring only to the remedy awarded in any given case, or whether he literally meant that a court is less likely to consider that a claim is within the Act at all because of the amendment. Durie J does appear, however, to enunciate this effect of the reform separately from the more straightforward proposition that the court can award less than the value of the promise or nothing at all as a result of the reform to the remedy. 3.4.3.2 Remuneration Even if the deceased has clearly failed to make the promised provision, the claim will not necessarily meet the requirements of section 3(1). The services must not have been fully remunerated either before or after they were performed. The meaning of ‘remuneration’ corresponds to the liberal interpretation of ‘services’, so that companionship provided by the deceased is relevant.172 In Kite v May, the relationship between the deceased and the claimant went through several phases. During one period, the parties had a ‘domestic and social relationship’, during which the claimant gained a home and ‘an enhanced ability to acquire a property of her own’, and the deceased   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1).   See, generally section 3.5. 171   Re Beazer (n 63) [54]. 172   Powell v Public Trustee (n 56) [31]–[33] (Tipping J). cf Wells, ‘Testamentary Promises: A New Approach’ (n 45) 310. 169 170



3.4  The Services or Work 111

paid all the household expenses.173 Although the claim eventually succeeded because the deceased ‘took a great deal more than he gave’ in later years,174 the earlier period was ‘put to one side altogether’ for the purposes of the claim.175 This contrasts with the position where a claim is brought by a dependant under family provision statutes. There, the fact that the deceased provided a home and paid household expenses will often increase the likelihood that a claim will succeed.176 There is clearly a close link between cases where the services do not go beyond what would be considered ‘normal’, and those where any services were remunerated. This is analogous with the position in proprietary estoppel cases.177 There is a suggestion that the courts are nevertheless cautious when classifying benefits received by the claimant as ‘remuneration’. A court might conclude that the promise was intended to be additional to remuneration already provided.178 In Re Hanlon, the claimant had paid a reduced rent to the deceased care recipient who was her landlord, which amounted to around half the market rate.179 While the court accepted that one of the reasons for the reduced rent may have been the care provided, it was said that ‘there was no evidence to suggest that that was ever said and it was therefore not part of the bargain between [the deceased and the claimant]’.180 The Court of Appeal was notably cautious about the issue of remuneration in the earlier case of Jones v Public Trustee.181 At first instance, the trial judge had been influenced by the fact that the testator had arranged to pay for a home for himself, the claimant and his family. In the judge’s view, the claimant ‘received a quid pro quo for such services as he and his wife rendered to [the] deceased’, and thus he concluded that there was no connection at all between any promise made as to testamentary dispositions and nursing services later provided.182 The Court of Appeal, on the other hand, emphasised the ‘heavy responsibility’ that the applicant had undertaken,183 even in the light of the fact that he was able to live in the house rent-free. An unusual consideration in that case was the fact that the deceased had led the applicant erroneously to believe that the two were biological father and son. Nevertheless, Jones illustrates the willingness of the courts to interpret ‘remuneration’ and related concepts in a way that is generous to the claimant in certain circumstances.   Kite v May (n 5) [57] (Hammond J).   ibid [65] (Hammond J).   ibid [57] (Hammond J). 176   See ch 5. 177   See, eg section 2.2.4.1 above. 178   McMillan v New Zealand Insurance Co Ltd [1956] NZLR 353 (SC). 179   Re Hanlon (n 13). 180   ibid 234 (Williams J). 181   Jones v Public Trustee (n 64). 182   ibid 366 (Henry J). 183   ibid 375 (North J). 173 174 175

112  Statutory Enforcement of Promises 3.5  THE REMEDY

3.5.1  History and Reforms Originally, the 1949 Act required promises for specific sums of money to be given full effect. This led to a ‘rigidity’ that allowed the beneficiaries of such promises an entitlement to the full amount even if that exceeded ‘what was morally reasonable in all the circumstances’.184 Reforms were undertaken in 1961.185 The Act now stipulates the possible remedy by providing that the deceased’s promise is enforceable ‘in the same manner and to the same extent as if the promise . . . were a promise for payment by the deceased in his lifetime of such amount as may be reasonable’.186 Unlike proprietary estoppel,187 the Act does not therefore create any form of ‘inchoate equity’, meaning that it is less powerful than a property law doctrine. Nevertheless, the ‘minimum equity’ approach adopted in relation to estoppel reduces the effect of the distinction,188 and a non-­ proprietary claim seems more appropriate given the variety of potential claims on an estate. In deciding what would be a reasonable amount, the court is instructed to consider: [A]ll the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate189

The courts have seemingly interpreted the Act in such a way that the value of the promise represents the ceiling of a ‘reasonable’ award, such that more cannot be awarded. In the view of Tipping J: ‘It would be a curious anomaly if, following a complete failure to make any testamentary provision or provide other remuneration, the claimant could obtain more than the promise’.190 According to Patterson, the courts have ‘frequently’ exercised their discretion to award less than the claimant had been promised.191   McCormack v Foley (n 4) 69 (Richardson J).   Law Reform (Testamentary Promises) Amendment Act 1961 (NZ). 186   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1). 187   See section 2.3.1 above. 188   See section 2.3.2 above. 189   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(1). 190   Re Collier-Cambus (decd) (n 11) cited recently in Re the Estate of JIM, AES v New Zealand Public Trust [2010] NZFLR 1085 [43] (MacKenzie J). See Wells, ‘Testamentary Promises: A New Approach’ (n 45) 308–309 for criticism. 191  Patterson, Law of Family Protection and Testamentary Promises (n 6) [13.1]. 184 185



3.3  The Remedy 113

3.5.2  The Possible Orders The default order that will be made under the Act appears to be a ‘reasonable sum’,192 which may be in the form of a lump sum, periodical payment or ‘other payment’.193 Nevertheless, where the promise related to a particular piece of real or personal property that remains part of the deceased’s estate, the court has discretion to award that property to the claimant.194 The court may also combine an award of part of the relevant property with a reasonable sum.195 When deciding whether to make a vesting order, once again the principle guiding the court is that of reasonableness. In Re Welch, it was recognised that: [W]here there have been meritorious services and considerable sacrifice on the part of a claimant and the property promised has been a central feature in the services or the life of the claimant, the natural order under the Act may be one vesting the property in the claimant.196

Vesting orders have been recognised as particularly important where the home is a central feature in the life or services of the claimant,197 and it is not suggested that vesting orders should be used ‘exceptionally or sparingly’.198 Nevertheless, the court will consider all the circumstances of the case and will not allow an unreasonable award to be caused by a vesting order.199 The decision on which order to make is therefore effectively subsumed within the overall discretion on the quantum of the appropriate remedy. 3.5.3  The Relevant Factors As confirmed in Re Welch, ‘reasonableness’ is the overall aim of the court when determining the remedy to be granted. If the testator has promised the claimant specific property or a certain sum of money, ‘that is a relevant consideration but not necessarily decisive’,200 although a general assessment of the value of services ‘by a promisor able to exercise a sound judgment’ will ‘not lightly be departed from’.201   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(3).   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(4). 194   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(3)(a). 195   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(3)(b). 196   Re Welch (n 2) 6 (Sir Robin Cooke). 197   Re Lowe [1991] 1 NZLR 98 (HC) 108 (Wylie J). 198   Re Townley [1982] 2 NZLR 87 (CA) 89 (Cooke J). 199  ibid. 200   Re Welch (n 2) 6 (Sir Robin Cooke). 201   ibid 7 (Sir Robin Cooke). 192 193

114  Statutory Enforcement of Promises Inevitably, a large measure of discretion is involved, since the Privy Council recognised that it is often ‘impossible or inappropriate to weigh in any nice scales services or work on the one hand and testamentary reward on the other’.202 The appellate courts will be slow to interfere with the exercise of the discretion by the first instance judge who has heard the oral evidence.203 This mirrors the perceived need for deference in English estoppel cases following Thorner v Major.204 The process of determining the appropriate remedy was particularly difficult in Byrne v Bishop. The claimants in that case, a family, ‘came to the rescue of their lonely neighbour, who may well have drunk himself to an early death in his almost derelict farmhouse if they had not brought him into their family’.205 Counsel criticised the judge at first instance for describing the companionship provided by the family as ‘priceless’ and yet going on to make an award to the value of NZ$1.4m out of a NZ$2.5m estate.206 The Court of Appeal rejected this criticism, on the basis that: ‘In their very nature services of this kind, particularly companionship and love, are really beyond a monetary calculation. But the Act requires the Court to assess a value’.207 This approach is correct. The word ‘priceless’ is largely a figure of speech, suggesting that a generous award is appropriate. The Act requires a judge to attempt to put a value on the invaluable, and it would be contrary both to justice and to common sense if services are said to be of such value that they are not compensable. As with the assessment of whether the service has been provided at all, its value is assessed from the point of view of the testator rather than the claimant.208 This makes it more likely that the full extent of the promise will be satisfied. One example given by the Privy Council where it might be appropriate to depart from the deceased’s promise is in the case of a ‘promise of the whole estate prompted by gratitude, in perhaps an emotional moment, for a single act of rescue or kindness’.209 This approach preserves a measure of the testamentary freedom of a vulnerable care recipient by preventing her from being bound by a promise made while in an emotional state. Often, however, the promise is made a number of times during a long period in which care is provided, and this exception would not apply ‘where there have been meritorious services and considerable sacrifice on the part of a claimant’.210   ibid 7 (Sir Robin Cooke).   ibid 6–7 (Sir Robin Cooke). 204   See section 2.2.2.1 above. 205   Byrne v Bishop (n 57) [50] (Blanchard J). 206   ibid [51] (Blanchard J). 207   ibid [51] (Blanchard J). 208   Wright v Holland [1995] NZFLR 951 (HC) 959 (Elias J). 209   Re Welch (n 2) 6 (Sir Robin Cooke). 210   ibid 6 (Sir Robin Cooke). 202 203



3.3  The Remedy 115

There is some debate concerning whether the search for the appropriate remedy begins at the value of the promise or from zero. In the English law on estoppel, on the other hand, it is at least clear that the starting point is the value of the expectation.211 The Court of Appeal in Powell was convinced that ‘whichever way one looks at it, logically the same result should be achieved’,212 although it is questionable whether this is a workable assumption given the amount of discretion involved. In Re Hanlon,213 attempts to estimate what the care would have cost had it been provided by someone employed for the purpose were treated in a similar manner to that adopted by the English Court of Appeal in Jennings v Rice. Williams J considered such figures to be of ‘some assistance’, but said that they were ‘by no means determinative’, partly because they did not take account of the value of constant presence and of the friendship enjoyed by the claimant and the deceased.214 3.5.4  Countervailing Benefits and Conduct Countervailing benefits provided to the claimant by the deceased are taken into account. As we have seen, full remuneration will extinguish the claim, in a similar fashion to the satisfaction of the equity in estoppel cases. If the services have been partially remunerated, the claim ‘can succeed only to the extent of the shortfall’, whether the remuneration provided is financial or less tangible.215 The court must ‘net off’ the benefits and burdens on either side, even if that process is ‘awkward, and in a sense distasteful in respect of close personal relationships’.216 In Re Welch, a case in which the familial relationship and countervailing benefits were almost sufficient to extinguish the claim entirely, the Privy Council refused to reinstate the first instance judge’s award of half the deceased’s estate, and instead upheld the more modest award given by the Court of Appeal. Indeed, the Court of Appeal in Byrne v Bishop opined that the Privy Council considered the claimant ‘fortunate’ to be awarded even that.217 Countervailing benefits, or a lack thereof, have also been taken into account under the guise of other factors. For example, in Re Beazer the claimants did not share a house with the deceased. In distinguishing those facts from cases where carer and care recipient lived under the same roof, Durie J was influenced not by the lack of the countervailing benefit, but by   Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501 [47] (Robert Walker LJ).   Powell v Public Trustee (n 56) [41] (Tipping J).   Re Hanlon (n 13). 214   ibid 235. 215   Powell v Public Trustee (n 56) [31] (Tipping J). 216   Samuels v Atkinson (n 150) [78] (Hammond J). 217   Byrne v Bishop (n 57) [49] (Blanchard J). 211

212 213

116  Statutory Enforcement of Promises the deceased’s ‘double benefit of independence with support that was even daily support when required’.218 Although countervailing benefits are relevant, claimants are not necessarily to be ‘punished’ for their conduct by having the services they provided devalued and the remedies reduced. In Powell v Public Trustee, it emerged that the claimant had exaggerated one of her diary entries in order to support her claim. The Court of Appeal held that this was relevant only to the credibility of her evidence (which was corroborated by other witnesses) and the award of costs rather than the size of the remedy.219 In Cain v Nyhon, the judge was content to make an order in spite of the fact that the deceased made the promise ‘against a background of pressure felt by the deceased from the applicant’ because that applicant was in financial need.220 This approach is somewhat generous given the treatment of the claimant’s submissions in the English estoppel case of Murphy v Rayner as a result of her conduct, but Murphy is admittedly an extreme example.221 3.5.5  The Relevance of Other Claims The merits of other claims on the deceased’s estate are also taken into account in determining the appropriate remedy under the Act, and the court is given the power to determine priorities between the claimant and any other person with a beneficial interest in the estate.222 Testamentary promise claims are usually brought before or contemporaneously with family provision claims,223 and respect for the wishes of the testator as expressed in a will has been recognised as an ‘old-established principle’.224 In Hamilton v Hamilton, the court expressed the view that ‘neither a testamentary promises claim, nor a family protection claim, nor a provision in a will has automatic preference over any of the others’.225 Baragwanath J adopted remarks from a different context226 to the effect that where there are competing claims, the court should strive to ‘resolve the conflict in such manner as will best meet the justice of the particular case and produce a just result, as [among] all the parties’.227 That said, Patterson   Re Beazer (n 63) [67].   Powell v Public Trustee (n 56). 220   Cain v Nyhon (n 35) [60] (O’Dwyer J). 221   Murphy v Rayner [2011] EWHC (Ch) 1. 222   Law Reform (Testamentary Promises) Act 1949 (NZ), s 3(6). 223  In Kite v May (n 5), the family provision claims were settled through mediation in advance of the court hearing on the 1949 Act. This was a factor that ‘troubled [the judge] considerably’: [83] (Hammond J). 224   Re Beazer (n 63) [66] (Durie J). 225   Hamilton v Hamilton (n 31) [60] (Baragwanath J). 226   Re Hayward [1989] 1 NZLR 759 (HC) 767 (Thorpe J). 227   Hamilton v Hamilton (n 31) [60]. 218 219



3.3  The Remedy 117

continues to argue that moral obligations enforceable under the Act have a lower status that the moral duties owed to claimants under the Family Protection Act 1955.228 As a general principle, this could have the unusual effect of prioritising remedies addressing unconscionability of outcome over those addressing unconscionability of dealing. It is a theme of this book that remedying unconscionability of dealing generally raises fewer difficulties,229 although the role of family provision law in addressing the needs of genuine dependants cannot be overlooked.230 Patterson’s view may also be heavily influenced by the (now diminishing) importance attached to the moral claims of adult children under the New Zealand family provision legislation.231 In Re Welch, it was noted that the deceased’s siblings, who were his bene­ficiaries under the intestacy rules, had not asserted ‘any moral claim on the bounty of the deceased except such as may be said to follow from kinship alone’.232 Similarly, there is a suggestion in Byrne v Bishop that competing claims by relatives under the normal rules of succession may be prejudiced by the very fact that they left the deceased to be cared for by someone from outside the family, taking little interest themselves.233 The Law Commission’s Draft Succession (Adjustment) Act contains a set of principles to govern priorities as between claimants, with contribution awards somewhat inflexibly taking priority over support awards.234 3.5.6  Criticism and Proposed Reforms The New Zealand Law Commission criticised the notion that the remedy cannot exceed the value of the promise, even if the testator has significantly undervalued the work.235 This reflects the fact that the Act is concerned primarily with enforcing promises rather than providing adequate remuneration for work. Similarly, the court is free to award a remedy that is less than what is promised, and often does so. Both of these elements are mirrored by the remedial discretion in proprietary estoppel, where the remedy cannot exceed the expectation generated and the court will award the minimum necessary to satisfy the equity.236 The Commission also noted that the principles through which the court determines the remedy are not made explicit in the statute, which creates problems for certainty.  Patterson, Law of Family Protection and Testamentary Promises (n 6) [13.7].   See, eg section 1.3.2 above. 230   See, generally section 5.2 below. 231   See section 5.4.9.2 below. 232   Re Welch (n 2) 3 (Sir Robin Cooke). 233   Byrne v Bishop (n 57) [55] (Blanchard J). 234   Draft Succession (Adjustment) Act, Part 5, Subpart 5. 235   New Zealand Law Commission, Succession Law: Testamentary Claims (n 8) [296]. 236   See section 2.3 above. 228 229

118  Statutory Enforcement of Promises Although the discretion can appear similar to that adopted by Robert Walker LJ in the English estoppel context,237 Nicola Peart criticises it for its uncertainty and its failure to prioritise claims.238 The Commission set out alternative principles to govern the remedy. They propose that a claimant would usually be awarded what he had been promised but that the court could vary this having regard to any understanding between the parties, the fairness and reasonableness of any agreement or understanding, changes in circumstance that have occurred since the arrangement was made or any other relevant considerations.239 Such reforms could marginally increase the level of certainty while preserving judicial discretion. The Commission also considered the nature of the remedy that would be available were its proposals based on extending the Act beyond promises. It anticipated that the remedy for a claim based on unjust retention of a benefit would usually be the ‘value of the benefit’240 but the court would be given the discretion to consider other factors leading to either a greater or a lesser award.241 The factors are any arrangement made between the contributor and the deceased,242 including the fairness of its terms243 and its operation,244 the length of time that has passed and any relevant change in the circumstances.245 Under the proposal, the court could also have regard to any other circumstances that it considers relevant.246 Significantly, these are expressed to include ‘the possible implications of the award for third parties’.247 This statutory remedial discretion means that no carer would be absolutely entitled to an award equating to the value of the care (difficult as that may be to ascertain in the first place).248 This is a welcome limitation given the wide variety of potential claims on a care recipient’s estate. Peart implies that even the principles currently governing the remedy could render the Act a mechanism that addresses unconscionability of outcome rather than unconscionability of dealing. On the one hand, she accepts that the Act is arguably ‘a means of enforcing a debt rather than a limit on testamentary freedom’ because of its quasi-contractual nature.249   See section 2.3.3 above.   N Peart, ‘New Zealand’s Succession Law: Subverting Reasonable Expectations’ (2008) 37 Common Law World Review 356. 239   Draft Succession (Adjustment) Act, s 36(3). 240   Draft Succession (Adjustment) Act, s 36(2). 241   Draft Succession (Adjustment) Act, s 36(3). 242   Draft Succession (Adjustment) Act, s 36(3)(a). 243   Draft Succession (Adjustment) Act, s 36(3)(b). 244   Draft Succession (Adjustment) Act, s 36(3)(c). 245   Draft Succession (Adjustment) Act, s 36(3)(d). 246   Draft Succession (Adjustment) Act, s 36(3)(e). 247   Draft Succession (Adjustment) Act, s 36(3)(e). 248   cf ch 4 on the law of unjust enrichment. 249   Peart, ‘New Zealand’s Succession Law: Subverting Reasonable Expectations’ (n 238) 361. 237 238



3.6 Conclusion 119

In any event, she admits that enforcing obligations that the alleged promisor ‘voluntarily assumed’, would be an ‘accepted and justifiable limitation on testamentary freedom’.250 On the other hand, she argues that the wide discretion possessed by the court in fashioning the remedy means that the Act is ‘widely regarded as a restriction on testamentary freedom’.251 It seems somewhat ironic that the Act is considered to be more of an infringement of testamentary freedom because the court has apparently been given a discretion to award less (and not more) than the value of what was promised. 3.6 CONCLUSION

Nield has written that a statutory method of enforcing a testamentary promise ‘tends to cut through the moral tensions presented by balancing the exploitation of carers against . . . certainty . . . and freedom of testamentary disposition, as well as providing ‘a societal endorsement of policy’.252 Similarly, Albert H Oosterhoff argues that there is ‘much to be said for codifying the anfractuous law of testamentary promises and [bringing] all of it together in a modern, clear, statement of entitlement’.253 In his view, this would simplify the administration of estates and improve understanding of the law among the general public. Indeed, this chapter has highlighted that the New Zealand Act successfully circumvents many of the most serious difficulties presented by the modern law of estoppel in England as far as the informal carer is concerned. A statutory mechanism of promise enforcement would also be useful in the light of the legitimacybased concerns surrounding estoppel that were discussed in section 2.4, and constitute a more specialised remedy even if the relief granted is inevitably discretionary. The enforcement of a promise, even if is subsequently revoked or never honoured, is less controversial than provision made in the absence of a promise. This issue is analogous to the comparison between a statute like the 1949 Act (in its current form) and a family provision statute. While the Court of Appeal in McCormack v Foley accepted that there were similarities between the 1949 and 1955 New Zealand Acts, it was also recognised that ‘they represent different ideas’, since: One is aimed at ensuring that the testator provides adequately for his family, as carefully defined by the legislator, whether he wishes to do so or not. The object   ibid 377.   ibid 361. 252   Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 23) 298. 253  AH Oosterhoff, ‘Succession Law in the Antipodes: Proposals for Reform in New Zealand’ (1997) 16 Estates and Trusts Journal 230, 250. 250 251

120  Statutory Enforcement of Promises of the other is to ensure that he should perform his promises to those who have served him, whether there are members of his family or not.254

For the moment, all that needs to be concluded is that a statutory mechan­ ism of promise enforcement has advantages over proprietary estoppel, given the uncertainties and concerns over legitimacy currently over­ shadowing that doctrine. While it was necessary to consider the question whether the 1949 Act should be extended beyond the enforcement of promises in this chapter, the appropriateness of addressing unconscionability of outcome (rather than dealing) will be discussed in much greater depth in chapter five (concerning family provision). The next chapter largely continues the discussion of mechanisms with the potential to address unconscionability of dealing, by considering the possibility of unjust enrichment claims by informal carers.

254

  McCormack v Foley (n 4) 66 (RB Cooke J).

4 Unjust Enrichment

I

4.1 INTRODUCTION

T MIGHT BE assumed that a remedy could readily be sought by an informal carer on the basis that the care recipient was unjustly enriched by the services provided. Indeed, Nield has said that the idea of such a claim has ‘immediate resonance’.1 Even so, the possibility of using the principles of unjust enrichment to claim a remedy for caring or other domestic services, such as a quantum meruit calculated accord­ ing to their reasonable value, remains controversial in England.2 In all likelihood, the controversy relates to the suspicions with regard to prin­ ciples such as negotiorum gestio discussed in section 1.4.1 above, as well as the general ‘uncertainty surrounding this emerging area of law’.3 Writing in 2007, Rosalyn Wells claimed that in England the law of unjust enrichment had not yet been used successfully to enforce a testamentary promise.4 That said, there have been signs of an unjust enrichment-based analysis in some cases analogous to care scenarios. In response to an attempt by a mother to evict her daughter and son-in-law, the defendants in Cook v Thomas sought to argue that they should be given a beneficial interest in the mother’s property because she had been unjustly enriched.5 The unjust enrichment was alleged to have occurred because the defendants had repaired and improved the property. Their primary submission, how­ ever, was that they were entitled to continue living on the property and to succeed to it on the claimant’s death by virtue of a proprietary estoppel. They founded this claim on alleged promises coupled with detrimental reliance. Both claims were dismissed by the judge and the Court of Appeal. Since it was found that the repairs and improvements were for 1  S Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (2007) 58 Northern Ireland Legal Quarterly 287, 294. 2   cf the antiquated cases on the provision of urgent medical treatment for ‘paupers’, eg Lamb v Bunce (1815) 4 M & S 275, (1815) 105 ER 836 (KB). 3   Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 1) 295. 4   R Wells, ‘Testamentary Promises and Unjust Enrichment’ (2007) 15 Restitution Law Review 37, 38. 5   Cook v Thomas [2010] EWCA Civ 227.

122  Unjust Enrichment the defendants’ own use and benefit, Lloyd LJ held that there was ‘no ten­ able basis of an unjust enrichment claim’ on the facts.6 Of course, Cook was a weak case and it does not preclude a future increase in the use of unjust enrichment-based arguments in English care cases where estoppel could be made out, or in similar scenarios.7 Nevertheless, given inter alia the apparent antipathy towards unjust enrichment claims in the domestic context in England, examined in sec­ tion 4.4 below, this area of the law may not be a particularly fertile source of a remedy for informal carers for some time. Even so, the main elements of a potential claim are considered in outline in this chapter. Section 4.2 analyses the extent to which care services can constitute a relevant enrich­ ment in English law. Section 4.3 then considers the possible grounds (or ‘unjust factors’) upon which the carer could base his claim for restitution of unjust enrichment, albeit acknowledging that finding an appropriate factor is a difficult task. The more positive and developed position in Canada is also analysed in this chapter, largely in section 4.5. 4.2  CARE SERVICES AS ENRICHMENT

It is relatively well-established that, in England and Wales, a successful unjust enrichment claim involves the enrichment of the defendant at the expense of the claimant in particular circumstances rendering the enrich­ ment unjust and where there are no defences.8 A significant feature of the law of unjust enrichment is that it focuses on gains made by a defendant (for present purposes the care recipient). The relevant gain in a case involving a carer is the care that he has provided. There is some doubt as to whether the provision of care services would even constitute a relevant enrichment, the first requirement of a claim. Sir Jack Beatson has argued that ‘pure’ services, producing at most an increase in the ‘human capital’ of the defendant9 and neither a ‘marketable resid­   ibid [106].   The case does not appear to be cited in the most recent edition of Goff & Jones: C Mitchell, P Mitchell and S Watterson, Goff & Jones: The Law of Unjust Enrichment, 8th edn (London, Sweet & Maxwell, 2011). 8   Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221 (HL), 227 (Lord Steyn). In Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2012] EWHC 458 (Ch), [2012] STI 1373 Henderson J noted that it has ‘now become conventional’ to analyse unjust enrichment claims with reference to those four matters ([38]). He opined, however, that ‘the four questions are no more than broad headings for ease of exposition’ that ‘should not be approached as if they had statutory force’ ([39]). cf P Birks, Unjust Enrichment, 2nd edn (Oxford, Clarendon Press, 2005) on ‘absence of basis’ as the justification for an unjust enrichment claim. For a discussion of possible defences to an unjust enrich­ ment claim, see, eg Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) part 6. 9   J Beatson, The Use and Abuse of Unjust Enrichment: Essays on the Law of Restitution (Oxford, Clarendon Press, 1991) 23. 6 7



4.2  Care Services as Enrichment 123

uum’ retained by the defendant10 nor a saving in expenditure, do not con­ stitute an enrichment. Some care does produce a saving in expenditure. Indeed, several cases considered in this book involve an informal carer who enabled the care recipient to remain in her own home rather than enter formal care,11 which could have been costly in financial as well as emotional terms. Many carers would still be excluded by Beatson’s approach, and his definition is widely considered to be too restrictive. Graham Virgo claims that there is an objective enrichment if reasonable people are prepared to pay for a relevant service in the market,12 something that is clearly true of care services. Moreover, in Re Berkley Applegate (Investment Consultants) Ltd (No 1), for example, Deputy Judge Edward Nugee QC accepted that the skill and labour of a liquidator could be compensable out of property that he had administered even though it did not directly enhance the value of the assets in question, on the basis that the work was necessary.13 The authors of the latest edition Goff & Jones: The Law of Unjust Enrichment go so far as to say that ‘it is well established that “pure” services can con­ stitute an enrichment’.14 In Canada, the Supreme Court recently restated emphatically in Kerr v Baranow that domestic services that the claimant is under no duty to pro­ vide ‘constitute an enrichment because such services are of great value to the family’.15 The Court was conscious that ‘any other conclusion devalues contributions, mostly by women, to the family economy’.16 This analysis is compelling, particularly since enrichment without more does not give rise to a remedy. Even if it is established that the provision of particular care services does constitute enrichment, however, subjective devaluation could obstruct the claim.17 This principle allows a care recipient to claim that, whatever reasonable people might say, she did not value the care pro­ vided and was not therefore enriched by it. In Taylor v Laird, Pollock CB illustrated the issue by posing the following conundrum: ‘One man cleans another’s shoes. What can the other do but put them on?’18 Admittedly, subjective devaluation could be countered by using the doctrine of incontrovertible benefit,19 whereby the benefit received is so   ibid 23.   See, eg Walters v Smee [2008] EWHC 2029 (Ch), [2009] WTLR 521. 12  G Virgo, The Principles of the Law of Restitution, 2nd edn (Oxford, Oxford University Press, 2006) 72. See also P Birks, ‘In Defence of Free Acceptance’ in A Burrows (ed), Essays on the Law of Restitution (Oxford, Clarendon Press, 1991) 132–35. 13   Re Berkley Applegate (Investment Consultants) Ltd (No 1) [1989] Ch 32, 50. 14   Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [5-21]. 15   Kerr v Baranow [2011] SCC 10, [2011] 1 SCR 269 [42] (Cromwell J). 16   ibid [42] (Cromwell J). 17   See, eg Falcke v Scottish Imperial Co (1886) 34 Ch D 234 (CA). 18   Taylor v Laird (1856) 25 LJ Exch 329, 332, (1856) 156 ER 1203. 19   Cressman v Coys of Kennington (Sales) Ltd [2004] EWCA Civ 47, [2004] 1 WLR 2775. 10 11

124  Unjust Enrichment obviously objectively beneficial that ‘any subjective devaluation argu­ ment . . . can be dismissed out of hand’.20 This dismissal might occur on the basis that the carer anticipated necessary expenditure on the part of the care recipient. Simone Degeling argues that the doctrine of incontro­ vertible benefit is of ‘wide application’ in cases on carers for the tortiously injured,21 and the same is likely to be true in the situations with which this book is concerned. Free acceptance, considered as a possible unjust factor in section 4.3, can also counter suggestions of subjective devaluation. Moreover, Wells points out that a care recipient who makes a promise of provision in return for care will have difficulty in sustaining an argument of subjective devaluation since ‘[b]y demonstrating a willingness to make (deferred) payment for the services, the deceased shows that he values them’.22 Outside the context of a promise, however, she fears that ‘an unscrupulous person might foist unwanted services on an elderly or vul­ nerable person who could no longer assert his autonomy’.23 This concern is particularly relevant to the discussion of unjust factors, considered in the next section. 4.3  THE UNJUST FACTOR

The potential difficulties in demonstrating that care is an enrichment con­ sidered in the last section can be overcome without undue difficulty. Having shown that the care recipient was enriched at his expense,24 however, the claimant carer must still identify the relevant unjust factor through which restitution of unjust enrichment can be sought.25 This is not an easy task, and Wells argues that that ‘the courts have not always scrupled to identify the unjust factor present in more recent quantum meruit cases’.26 Several factors could be relevant, but a fundamental difficulty faced by the carer who seeks a remedy is that in many situations he can plausibly be described as a ‘domestic risk-taker’.27 In other words, it could often be   A Burrows, The Law of Restitution, 3rd edn (Oxford, Oxford University Press, 2011) 48.  S Degeling, Restitutionary Rights to Share in Damages: Carers’ Claims (Cambridge, Cambridge University Press, 2003) 60. 22   Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 68. 23  RP Wells, ‘Testamentary Promises: A New Approach’ (PhD thesis, King’s College London, 2007) 319. 24   The carer is unlikely to encounter difficulty in arguing that the enrichment occurred at his expense: see, eg Degeling, Restitutionary Rights to Share in Damages (n 21) 72. 25  See, eg Deutsche Morgan Grenfell v IRC [2006] UKHL 49, [2007] 1 AC 558 [21] (Lord Hoffmann). 26   Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 69. 27   The phrase is used by John Mee to describe the claimant in the estoppel case of Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776: J Mee, ‘The Limits of Proprietary Estoppel: Thorner v Major’ (2009) 21 Child and Family Law Quarterly 367, 374. For a devastating critique of the language of ‘risk-taking’ in the law of unjust enrichment, see F Wilmot-Smith, ‘Replacing Risk-Taking Reasoning’ (2011) 127 Law Quarterly Review 610. 20 21



4.3  The Unjust Factor 125

said that he voluntarily assumed caring responsibilities without entering a contract, and ‘gambled’ on the care recipient’s willingness to pay for his services after the event.28 Virgo considers it a fundamental principle that where a claimant has acted officiously in transferring a benefit, the law of unjust enrichment will not come to his aid.29 On this analysis, a carer will have to demonstrate that he did not act entirely voluntarily and offi­ ciously, by pointing to an unjust factor present in circumstances where he cannot be deemed a ‘risk-taker’. The ground that may seem most apposite to a care scenario30 is said to be based on the conduct of the defendant rather than the impaired con­ sent of the claimant carer in conferring the benefit.31 That possible unjust factor is ‘free acceptance’.32 It would be relevant where a care recipient fails to reject the care services provided by the claimant in spite of the fact that he should have known that the claimant expected to be paid for the care or to receive some other benefit in return (and therefore that the care was not being performed gratuitously).33 Many scholars, however, have refused to recognise free acceptance as a ground of restitution. Virgo pre­ fers the view that free acceptance can be invoked only to prevent subjec­ tive devaluation,34 and Andrew Burrows objects to it as a possible unjust factor because it includes risk-takers.35 Moreover, although there have been recent signs in commercial cases that free acceptance is recognised by some English judges,36 its status as an unjust factor seems fragile at best.37 Wells considers failure of consideration to be a ‘more promising’ factor than free acceptance with regard to the enforcement of testamentary promises.38 Indeed, Birks, at one time the ‘strongest proponent’ of free acceptance as an unjust factor,39 later recognised failure of consideration 28  A Burrows, ‘Free Acceptance and the Law of Restitution’ (1988) 104 Law Quarterly Review 576, 578. 29  Virgo, Principles of the Law of Restitution (n 12) 39–40; see also, eg Deutsche Morgan Grenfell v IRC (n 25) [25]–[27] (Lord Hoffmann). 30   Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 1) 297. 31   P Birks, An Introduction to the Law of Restitution, revised edn (Oxford, Clarendon Press, 1989) 265. 32   See, generally ibid ch 8. 33   Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [17-11]. 34  Virgo, Principles of the Law of Restitution (n 12) 121–24. 35   Burrows, ‘Free Acceptance and the Law of Restitution’ (n 28). 36   See, eg Rowe v Vale of White Horse DC [2003] EWHC 388 (Admin), [2003] 1 Lloyd’s Rep 418 [13] (Lightman J); Greater Manchester Police v Wigan Athletic FC [2008] EWCA Civ 1449 [2009] 1 WLR 1580 [66] (Maurice Kay LJ); Benedetti v Sawaris [2010] EWCA Civ 1427 [143] (Etherton LJ). 37   cf Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [17–18]. 38   Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 69. 39  Virgo, Principles of the Law of Restitution (n 12) 122.

126  Unjust Enrichment as a better explanation of many cases40 even before he changed his views on the nature of an unjust enrichment claim.41 Failure of consideration is based on the idea that the claimant’s enrichment of the defendant was conditional in a manner understood by both parties,42 and therefore vitiated by the non-performance of what the defendant promised, or the failure of a contingent condition.43 The precise formulation of the ‘failure of consideration’ principle for these purposes is open to doubt.44 For example, Lord Scott was of the view that: Where an agreement is reached under which an individual provides money and services in return for a legal but unenforceable promise which the promisor . . . refuses to carry out, the individual would be entitled . . . to a restitutionary remedy.45

Joshua Getzler, on the other hand, considers this formulation to be too wide, since in his view the doctrine operates where the parties ‘believe themselves to be bound’ but a factor such as statutory formality require­ ments or prohibitions prevents enforcement.46 At the very least, the availability of failure of consideration as a ground of restitution may not depend on a contractual context47 and the meaning of ‘consideration’ for these purposes is broader than that used in the law of contract,48 leading the authors of Goff & Jones to prefer the terminology of ‘failure of basis’.49 Indeed, the courts have shown some willingness to allow quantum meruit claims in respect of work done in anticipation of a contract that never materialised.50 It is notable that a quantum meruit was awarded in Cobbe v Yeoman’s Row Management Ltd,51 even though the claimant there has been deemed a ‘commercial risk-taker’.52 Nevertheless, the Supreme Court recently analysed a case of preparatory work as one in   Birks, ‘In Defence of Free Acceptance’ (n 12).  Birks, Unjust Enrichment (n 8). 42   Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [1302]. 43   See, eg Virgo, Principles of the Law of Restitution (n 12) ch 12. 44   cf Wilmot-Smith, ‘Replacing Risk-taking Reasoning’ (n 27) on failure of condition. 45   Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752 [43]. 46   J Getzler, ‘Quantum Meruit, Estoppel, and the Primacy of Contract’ (2009) 125 Law Quarterly Review 196, 202. 47  Virgo, Principles of the Law of Restitution (n 12) 307. 48   See, eg Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 (HL). 49   Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [1212]. 50   See, generally E McKendrick, ‘Work Done in Anticipation of a Contract which does not Materialize’ in W Cornish et al (eds), Restitution: Past, Present and Future: Essays in Honour of Gareth Jones (Oxford, Hart Publishing, 1998); R Havelock, ‘Anticipated Contracts that do not Materialise’ [2011] Restitution Law Review 72. 51   Cobbe v Yeoman’s Row Management Ltd (n 45). 52  A Goymour, ‘Cobbling Together Claims where a Contract Fails to Materialise’ [2009] Cambridge Law Journal 37, 40. See also B McFarlane and A Robertson, ‘The Death of Proprietary Estoppel’ [2008] Lloyd’s Maritime and Commercial Law Quarterly 449, 457–59. 40 41



4.3  The Unjust Factor 127

which a contract had in fact materialised,53 rather than adopting an analy­ sis based on unjust enrichment.54 As discussed in section 1.4.1 above, it is unlikely that a contract could be implied in a care case. Moreover, in his extra-judicial writings Lord Neuberger has said that it is ‘rather doubtful’ that the claimant in Thorner v Major would have succeeded in bringing a quantum meruit claim.55 He appears to make this suggestion because a contract between the parties was never even anticipated,56 and in spite of the fact that there was a sufficient understanding between them to justify a successful estoppel claim. Moreover, a carer could encounter difficulties if the failure of con­ sideration must be total rather than partial.57 Necessitous intervention is another possible basis of relief under the law of unjust enrichment,58 although its status as a general principle is unclear.59 In any event, it could be difficult to argue that a long-term care situation involves sufficient urgency to justify an argument based on necessity.60 The authors of Goff & Jones suggest that Canadian cases such as Clarkson v McCrossen61 (discussed in section 4.5 below) may legitimately be located within a principle of necessity,62 although there are dangers in doing so given the significant structural differences between the prevail­ ing English and Canadian conceptions of the law of unjust enrichment. The scope of the officiousness principle is particularly uncertain in rela­ tion to necessitous intervention. For example, the claimant’s intervention may not be justified on the basis of necessity ‘when another more appro­ priate person is available and willing to act’.63 Moreover, Virgo implies that a carer is likely to act officiously if he fails to take an opportunity to 53   RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14, [2010] 1 WLR 753. 54   See PS Davies, ‘Anticipated Contracts: Room For Agreement?’ [2010] Cambridge Law Journal 467 for discussion. 55   D Neuberger, ‘The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ [2009] Cambridge Law Journal 537, 542. 56   See also N Piska, ‘A Common Intention or a Rare Bird? James v Thomas; Morris v Morris’ (2009) 21 Child and Family Law Quarterly 104, 117 but cf J Edelman and E Bant, Unjust Enrichment in Australia, 2nd edn (Melbourne, Oxford University Press, 2006) 248. 57   See Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 69 for discussion of this point. 58  This possible unjust factor was characterised by Birks as ‘moral compulsion’: Birks, Introduction to the Law of Restitution (n 31) 193–202. His analysis has been subject to criticism: see, eg Burrows, The Law of Restitution (n 20) 479–80. 59   See also Kortmann, Altruism in Private Law ch 11 for a general discussion of private law remedies for ‘good Samaritans’ in English law. He recommends that the courts should develop a new general principle allowing necessitous interveners to claim reimbursement of expenses and compensation for loss: ch 13. 60  Degeling, Restitutionary Rights to Share in Damages (n 21) 95. cf Sheehan, ‘Negotiorum Gestio: A Civilian Concept in the Common Law?’ 275. 61   Clarkson v McCrossen [1995] CanLII 737 (BC CA), (1995) 122 DLR (4th) 239. 62   Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [18-67] fn 196. 63   Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL) 76 (Lord Goff).

128  Unjust Enrichment communicate with a care recipient,64 and Degeling acknowledges that such communication is likely to be possible in most care situations.65 A necessitous care situation of sorts was at issue in Re Rhodes,66 where it was held that family members who had paid for a now-deceased person to remain at an asylum had no claim against the deceased’s estate because they had paid the money out of kindness and did not intend to create an obligation of repayment. Claimants who provide care directly could face similar obstacles, and as demonstrated in section 4.5, they have done so even in Canada as a result of the notion of ‘donative intent’. Finally,67 the carer could attempt to invoke mistake as a relevant unjust factor.68 The mistake in question could be either induced by the care recipient or non-induced. For example, a mistaken belief by the carer that a valid contract has been concluded between himself and the care recipient,69 or that he is a beneficiary under the care recipient’s will, could be relevant. On the other hand, if the carer knows that the care recipient has not made a will and inaccurately believes that she will do so in the future, that is likely to be considered a misprediction and would not jus­ tify a claim.70 It can therefore be seen that it is difficult to identify the unjust factor upon which a carer can base his claim in unjust enrichment. 4.4  UNJUST ENRICHMENT IN THE DOMESTIC CONTEXT IN ENGLAND AND WALES

It can be concluded that a carer is likely to encounter difficulty in utilising the English law of unjust enrichment at present. Walsh v Singh,71 a case involving the property and business affairs of former fiancés, could be illustrative of the current attitude of the English judiciary to the use of unjust enrichment in the domestic context.72 In Walsh it was considered  Virgo, Principles of the Law of Restitution (n 12) 289.  Degeling, Restitutionary Rights to Share in Damages (n 21) 95. 66   Re Rhodes (1890) 44 Ch D 94 (CA). 67   Degeling argues that there is a remedy for carers based on an unjust factor called the ‘policy against accumulation’, in the context where the care recipient is a victim of a tort who is entitled to claim damages against the tortfeasor: Degeling, Restitutionary Rights to Share in Damages (n 21). See also Hunt v Severs [1994] 2 AC 350 (HL). 68   See, generally, Virgo, Principles of the Law of Restitution (n 12) ch 8; Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (HL). 69   Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 70. 70   Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 1) 297. 71   Walsh v Singh [2009] EWHC 3219 (Ch), [2010] 1 FLR 1658. 72   See, eg Piska, ‘A Common Intention or a Rare Bird? James v Thomas; Morris v Morris’ (n 56) 115–20 for a summary of the potential obstacles to quantum meruit claims by unmar­ ried cohabitants in England. 64 65



4.5  The Distinctive Canadian Approach 129

fatal for the purposes of a quantum meruit award that the claimant ‘never intended to charge’ for services relating to her fiancé’s business project.73 On this basis, her claim was distinguished from that in Cobbe. Miss Walsh was found to have contributed voluntarily and ‘in the expectation of a long-term relationship and eventual marriage’ rather than a reward.74 More generally, and without discussing particular unjust factors, Judge Purle QC expressed concern that: ‘If dashed expectations of a long-term domestic relationship open the door to unjust enrichment claims, a wide range of claims which the concept of unjust enrichment was never meant, and is ill equipped, to deal with will come marching through.’75 It may be possible to distinguish care cases from Walsh v Singh, not least because the judge found it impossible to value Miss Walsh’s services in the context of the parties’ quasi-marital relationship,76 and because a carer may be more likely to have acted for a reward of some kind. Nevertheless, it is conceivable that Judge Purle QC’s more general statement will become influential. That would be unfortunate since it is questionable whether the constructive trust or proprietary estoppel are any more equipped to deal with ‘domestic’ cases than are the principles of unjust enrichment,77 and Douglas, Pearce and Woodward have argued that the situation currently faced by many cohabitants is best characterised using broad principles of unjust enrichment.78 Judge Purle QC’s views are some­ what ironic in light of the Canadian Supreme Court case of Kerr v Baranow, which positively asserted the utility of unjust enrichment (albeit fortified by the possible remedy of a constructive trust) as against the law of implied trusts, specifically the ‘common intention resulting trust’.79 The next sec­ tion analyses the Canadian approach to unjust enrichment in more detail. 4.5  THE DISTINCTIVE CANADIAN APPROACH

In contrast to the position in England, in Canada the principles of unjust enrichment have at times been applied with notable success to provide a   Walsh v Singh (n 71) [65] (Judge Purle QC).   ibid [65] (Judge Purle QC). 75   ibid [67]. 76   In Canada, the difficulty of valuing services in this sort of relationship will often be cir­ cumvented through the notion of a joint familial venture: Kerr v Baranow (n 15) [7] (Cromwell J). The current authors of Goff & Jones expressly contrast the attitude taken by Judge Purle QC in Walsh with the approach in inter alia Clarkson v McCrossen (n 61): Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [4-03]. 77   See T Etherton, ‘Constructive Trusts – A New Model for Equity and Unjust Enrichment’ [2008] Cambridge Law Journal 265, for some controversial views on the relationship between constructive trusts and unjust enrichment in this context. 78   G Douglas, J Pearce and H Woodward, ‘Cohabitants, Property and the Law: A Study of Injustice’ (2009) 72 Modern Law Review 24. 79   See, eg Kerr v Baranow (n 15) [6] (Cromwell J). 73 74

130  Unjust Enrichment remedy for informal carers.80 It is significant that the structure of the unjust enrichment analysis differs from that in England and Wales,81 since the Canadian judiciary requires the claimant to show an absence of a juris­ tic reason for retention of the enrichment rather than an unjust factor.82 There are established categories of juristic reason for an enrichment, now confirmed to include ‘the intention to make a gift (referred to as a “dona­ tive intent”), a contract, or a disposition of law’.83 An agreement whereby the claimant provides domestic services in return for benefit such as rentfree accommodation has been recognised as a juristic reason for this pur­ pose.84 Even if a claimant successfully argues that none of the established juristic reasons are present, the defendant is given a further chance to deny recovery by invoking the reasonable expectations of the parties as well as moral and public policy considerations,85 and it seems that an arrangement between the parties again becomes relevant here.86 A leading, if ageing, example of the Canadian jurisprudence is the deci­ sion of the Court of Appeal of British Columbia in Clarkson v McCrossen.87 The case involved a woman who went to considerable lengths to care for her mother and then her stepfather, and brought a successful claim in unjust enrichment against her stepfather’s estate. Hinds J, with whom the other two judges agreed, held that the deceased was enriched by the claimant’s services. Those services were ‘varied in nature and substantial in value’88 and included periods of nursing the deceased in his own home. 80   See Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) for a full (but now slightly dated) discussion of the enforcement of testamentary promises in Canada through unjust enrichment. Nield, ‘Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid Caregiving’ (n 1) considers the position specifically as regards carers. 81   See, eg Kerr v Baranow (n 15) [31]–[32] (Cromwell J); cf Birks, Unjust Enrichment (n 8). 82   Kerr v Baranow (n 15) [40]–[45] (Cromwell J). See Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 68 for (pre-Kerr) discussion of this point, and M McInnes, ‘Cohabitation, Trusts and Unjust Enrichment in the Supreme Court of Canada’ (2011) 127 Law Quarterly Review 339, 340–41 for an argument that Kerr definitively settled the point. A deprivation suffered by the claimant that corresponds to the enrichment must also be shown in Canada: Kerr v Baranow (n 15) [36] (Cromwell J). In that case, the Supreme Court con­ firmed that: ‘The unpaid provision of services (including domestic services) or labour may also constitute a deprivation [for these purposes] because the full-time devotion of one’s labour and earnings without compensation may readily be viewed as such’ (42). Deprivation is also possible even where an unpaid carer was not physically capable of full-time employ­ ment: Brennan v Gardy Estate [2011] BCSC 1337 [26] (Fenlon J). 83   Kerr v Baranow (n 15) [41] (Cromwell J), citing Peter v Beblow [1993] 1 SCR 980, [1993] CanLII 126 (SCC); Garland v Consumers’ Gas Co [2004] SCC 25, [2004] 1 SCR 629; and Rathwell v Rathwell [1978] CanLII 3 (SCC), [1978] 2 SCR 436. 84   Valerio v Silveira [2011] BCSC 1055, [2012] BCWLD 396, following Gensig v Hutchings [1996] CanLII 2192 (BC CA) (1996) 77 BCAC 305 even in the light of Kerr v Baranow. 85   Kerr v Baranow (n 15) [43] (Cromwell J), confirming the approach in Garland v Consumers’ Gas Co (n 83). 86   Kerr v Baranow (n 15) [41] (Cromwell J), applying Peel (Regional Municipality) v Canada [1992] CanLII 21 (SCC), [1992] 3 SCR 762. 87   Clarkson v McCrossen (n 61). 88   ibid [43].



4.5  The Distinctive Canadian Approach 131

The claimant was said to have suffered corresponding detriment since she was not paid for the services, and remained in a flexible but low-paid job so that she could better attend to the needs of her mother and stepfather. The Court of Appeal also decided that there was no juristic basis for the enrichment, since the claimant ‘was under no obligation, contractual, stat­ utory or otherwise,’ to render the services,89 although unfortunately the question of donative intent was not specifically analysed.90 When consid­ ering what the Supreme Court has now confirmed to be the ‘second step’ of the juristic reason analysis,91 the Court of Appeal in Clarkson noted the ‘substantial body of evidence’ suggesting that ‘both her mother and her stepfather had consistently told [the claimant] . . . that upon their death the family home would be hers’.92 The stepdaughter therefore had a legit­ imate expectation that she would inherit the family home. Kerr v Baranow sought to confirm that ‘the parties’ reasonable or legitimate expectations have a critical role to play’ at this point in the analysis,93 but they were confusingly said to have a ‘limited role’ in general.94 Although Hinds J suggested in Clarkson that there were stronger public policy reasons for allowing an unjust enrichment claim by a common-law spouse compared to the situation at hand, he decided that there was no reason to prevent such a claim being brought by a stepdaughter. McEachern CJ went fur­ ther, arguing that ‘in principle, no distinction should be drawn between services rendered under a reasonable expectation of fair treatment between a stepdaughter . . . and a wife or [unmarried] common-law partner’.95 In any event, the applicant had been left only a small legacy following an argument with her stepfather over his remarriage, and the deceased’s enrichment was deemed to be unjust. It is obviously signifi­ cant that the burden of proof is on the care recipient (or her estate) to jus­ tify a denial of a remedy once the carer’s claim reaches the second part of the ‘juristic reason’ stage. Other carer claimants are less fortunate than the one in Clarkson, and cases are (deliberately) treated in a fact-dependent manner.96 In the postKerr decision of Brennan v Gardy Estate, the claimant managed to show that the contract governing his rather informal rent payments did not cover the caring and other services that he had performed for his now-deceased ‘landlord’.97 Nevertheless, the Supreme Court of British Columbia deemed   ibid [53].   cf Gould v Royal Trust Corp of Canada [2009] BCSC 1528, [2010] BCWLD 608 [134] (Pearlman J). 91   Kerr v Baranow (n 15) [43] (Cromwell J). 92   Clarkson v McCrossen (n 61) [37]. 93   Kerr v Baranow (n 15) [122] (Cromwell J). 94   ibid [9] (Cromwell J). 95   Clarkson v McCrossen (n 61) [91]. 96   Kerr v Baranow (n 15) [44] (Cromwell J). 97   Brennan v Gardy Estate [2011] BCSC 1337, (2011) 207 ACWS (3d) 371. 89 90

132  Unjust Enrichment there to have been a juristic reason for his enrichment of the deceased by virtue of his donative intent. The case was described as one of ‘mutual giv­ ing arising out of a close mutual friendship’.98 Mr Brennan’s claim failed in spite of the fact that there was ‘no doubt’ that Mr Gardy had intended to provide for him by will,99 and indeed the claimant candidly and fatally admitted that he ‘did not expect’ to be paid for his services or to receive a benefit from Mr Gardy’s estate.100 It is therefore evident that Canadian claimants can still fall foul of the lack of intention to charge for domestic services that was considered to be problematic in the English case of Walsh v Singh.101 This is in spite of the fact that a motive of ‘natural love and affec­ tion’ has been expressly rejected as a bar to unjust enrichment claims for domestic services,102 and the matter raises similar issues to a strict approach to reliance in the context of estoppel. It should be noted that in Canada it is at the remedy or defence stage that any reciprocal benefits are most likely to be considered significant, although they can play a role at the juristic reason stage103 as they appear to have done in Brennan.104 The Canadian judiciary has a discretion con­ cerning the available remedies when an unjust enrichment claim is suc­ cessfully made out. In Kerr, the Supreme Court asserted that ‘given the wide variety of circumstances addressed by the traditional categories of unjust enrichment, as well as the flexibility of the broader, principled approach, its development has been characterized by, and indeed requires, recourse to a number of different sorts of remedies depending on the cir­ cumstances’.105 Judges have compensated detriment and given effect to expectations, going beyond what many would consider the boundaries of unjust enrichment in England and Wales.106 In Clarkson, the applicant sought the imposition of a constructive trust over her stepfather’s home. Such a remedy was possible in principle, but the Court of Appeal of British Columbia decided that a monetary award would be adequate,107 and the Supreme Court confirmed in Kerr that this would be true in most cases.108 In Clarkson the court noted that the appli­ cant had consented to the sale of the house by the executor, demonstrating   ibid [32] (Fenlon J).   ibid [7]. 100   ibid [31]. 101   See also Easingwood v Cockroft [2011] BCSC 1154, [2011] BCWLD 7778 [55] (Dillon J). 102   Kerr v Baranow (n 15) [42] (Cromwell J), citing Peter v Beblow (n 83). 103   Kerr v Baranow (n 15) [8] and [104] (Cromwell J). 104   Brennan v Gardy Estate (n 97) [33] (Fenlon J). 105   Kerr v Baranow (n 15) [72] (Cromwell J). 106  Wells, ‘Testamentary Promises and Unjust Enrichment’ (n 4) 68; see McInnes, ‘Cohabitation, Trusts and Unjust Enrichment in the Supreme Court of Canada’ (n 82) 342 for criticism. 107   McEachern CJ suggested that he would have preferred to award a constructive trust, but he declined to interfere with Hind J’s reasoning (Clarkson v McCrossen (n 61) [88]). 108   Kerr v Baranow (n 15) [47]. 98 99



4.5  The Distinctive Canadian Approach 133

that it had more of a monetary than an ‘intrinsic’ value to her.109 Moreover, there was said to be an insufficient link between the applicant’s services and the property over which she claimed a constructive trust.110 She was therefore awarded an amount representing the ‘value received’ by the deceased by virtue of the services.111 In Kerr v Baranow the Supreme Court expressed a preference for monetary awards to be calculated on a ‘value survived’ basis, founded on a link between the joint efforts of the parties and the accumulation of wealth, in certain cases where a constructive trust was nevertheless considered inappropriate.112 This is an alternative to the ‘value received’ or ‘fee-for-services’ basis, closer to the English notion of quantum meruit, which in the view of the Supreme Court risks requiring a ‘minute totting up of the give and take of daily domestic life’.113 Cases where the ‘value survived’ approach is appropriate are described as ‘joint family venture’ scenarios, in which the monetary remedy should be ‘calculated according to the share of the accumulated wealth propor­ tionate to the claimant’s contributions’.114 A ‘joint family venture’ can be identified using four headings, namely ‘mutual effort, economic integra­ tion, actual intent and priority of the family’.115 Some carers may succeed in demonstrating a ‘joint family venture’. Others will have to make do with a remedy based on ‘fee-for-services’, since the Supreme Court’s dis­ cussion of the ‘value survived’ factors appears to be focused towards con­ jugal relationships.116 Where a ‘value received’ approach is adopted, it seems that the court will calculate the award with reference to either ‘the annual earnings of equivalent occupations . . . based on available data over the term of the relationship’ or multiply the number of hours worked by the wage of equivalent workers or the minimum wage.117 It is unsurprising that the law of unjust enrichment has frequently been applied to carers in Canada, since in the context of conjugal cohabitation it   Clarkson v McCrossen (n 61) [66].  In Kerr v Baranow (n 15) the Supreme Court emphasised the need to ‘demonstrate a “sufficiently substantial and direct” link, a “causal connection” or a “nexus” between the plaintiff’s contributions and the property which is the subject matter of the trust’ ([51]) (Cromwell J). 111   Clarkson v McCrossen (n 61) [72]. 112   Kerr v Baranow (n 15) [60] (Cromwell J). 113   ibid [7] (Cromwell J). 114   ibid [87] (Cromwell J). 115   ibid [89] (Cromwell J). 116   A counterclaim in Kerr involved the care of one conjugal partner for another after the latter suffered a debilitating stroke, but a retrial had to be ordered (including a hearing on that point) due to a lack of evidence before the Supreme Court: ibid [199] (Cromwell J). 117   Valerio v Silveira (n 84) [141]–[142] (Fitzpatrick J), citing Wilson v Fotsch [2010] BCCA 226, [2010] BCWLD 4335 in the light of Kerr. A calculation based on an hourly rate was used in the English case of Chief Constable of Greater Manchester Police v Wigan Athletic FC [2007] EWHC 3095 (Ch), [2007] Po LR 246 (reversed on the basis that there had been no unjust enrichment (n 36)). 109 110

134  Unjust Enrichment is invoked for similar purposes as the common intention constructive trust in England and is thus more developed than its English equivalent.118 It has also been seen that the New Zealand Law Commission’s Draft Succession (Adjustment) Act has the aim of codifying much of the rele­ vant law of unjust enrichment in that jurisdiction.119 Neither of these facts aids the unjust enrichment claim of a carer in England and Wales. This chapter is concluded in the next section. 4.6 CONCLUSION

Since it is highly uncertain and underdeveloped in its application to the scenarios under discussion, the substantive law of unjust enrichment per se in England and Wales is unlikely to be the most successful basis for a claim by a carer as things stand, and McFarlane has written that ‘fortu­ nately’ Thorner ‘prevents the need’ to analyse estoppel cases such as Jennings v Rice in terms of unjust enrichment.120 While care could often constitute an ‘enrichment’, the existing unjust factors do not easily fit into the care scenarios considered in this book and there is scepticism about the deployment of the principles of unjust enrich­ ment in the domestic context. This picture seemingly contrasts with the position in Canada, albeit that the notion of ‘donative intent’ could thwart potential claims by many carers there. Admittedly, the pace of develop­ ment in the field of unjust enrichment is notably quick, and English law could well develop comfortably to accommodate claims by carers in the future. In any case, given the controversial nature of private law claims by car­ ers in general, unjust enrichment has the disadvantage of potentially gen­ erating more of a sense of entitlement on the part of the carer than, for example, a statutory claim on the care recipient’s estate that is subject to judicial discretion121 as well as (in some ways) more established legal prin­ ciples. It is also subject to many of the general difficulties with claims available inter vivos, discussed in chapter six, and raises difficult issues of valuation. Moreover, it is particularly difficult to draw a line between unconscionability of dealing and unconscionability of outcome in the 118   See, eg JD Payne and MA Payne, Canadian Family Law, 3rd edn (Toronto, Irwin, 2008) 61–62. It will be evident that the Canadian Supreme Court reviewed its approach to unjust enrichment claims in Kerr v Baranow. For a comparison between the Canadian unjust enrich­ ment approach and the English constructive trust approach to cohabitation cases, see M Lower, ‘The Constructive Trust: From Common Intention to Relationship? Kerr v Baranow’ [2011] Conveyancer and Property Lawyer 515. 119   See section 3.3 above. 120  B McFarlane, The Structure of Property Law (Oxford, Hart Publishing, 2008) online update at www.hartpub.co.uk/companion/propertylaw/yeomansthorner.pdf. 121   cf the remedial discretion in Canada.



4.6 Conclusion 135

unjust enrichment context, although many of the potentially relevant unjust factors in English law appear to address dealing since it is likely that there would often be a focus on any communication between carer and care recipient, or at least on the care recipient’s knowledge of the car­ er’s expectations. In spite of its current lack of utility as a distinct body of law in the pre­ sent context, concepts related to unjust enrichment as a general principle inevitably inform the analysis throughout the book, since the unjust enrichment of the care recipient in a broad sense is a fundamental notion underlying a carer’s private law claim. Moreover, several of the mechan­ isms discussed elsewhere in the book could be said to perform a restitu­ tionary function,122 and undue influence (addressed in chapter seven) is often treated as an aspect of the law of unjust enrichment.123 The next chapter primarily concerns unconscionability of outcome, since it discusses family provision claims by carers against the estates of care recipients.

122   See, eg K Gray and SF Gray, Elements of Land Law, 5th edn (Oxford, Oxford University Press, 2009) [9.2.1] on proprietary estoppel. On the relationship between unjust enrichment and restitution see Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) [1-01]–[1-05]. On the apparent distinction between the law of property and the law of unjust enrichment, see, eg Virgo, Principles of the Law of Restitution (n 12) 11–17. 123  See, eg Virgo, Principles of the Law of Restitution (n 12) 247–67; Mitchell, Mitchell and Watterson, Goff & Jones: The Law of Unjust Enrichment (n 7) ch 11; Burrows, The Law of Restitution (n 20) ch 11.

5 Family Provision

T

5.1 INTRODUCTION

HIS CHAPTER AND the next consider private law mechanisms with the clear potential to move beyond unconscionability of dealing and address unconscionability of outcome between carers and care recipients. As explained in chapter one, unconscionability of outcome describes scenarios where a carer has not received any indication from the care recipient that he will be rewarded for his efforts, but he nevertheless seeks a remedy by virtue of his care and the absence of an adequate reward for it. This chapter concerns the law of family provision on death. The default rule in English succession law is that ‘an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases’.1 Nevertheless, family provision statutes have made significant incursions into that principle in England and Wales, as well as its equivalent in the Commonwealth.2 The aim of this chapter is to consider whether such statutes can and should be used to support informal carers and whether reform of the English Inheritance (Provision for Family and Dependants) Act 1975 is required in order to achieve this. The particular advantages and controversies surrounding the use of family provision statutes for the described purpose are elucidated in section 5.2. It is argued that if policy-makers are content to interfere with testamentary freedom for the benefit of certain individuals, carers should at least be among the pool of potential applicants. No attempt is made to contend that relief should be awarded in all cases or that family provision can ever be a comprehensive substitute for state recognition and support of carers. Sections 5.3 and 5.4 contain a detailed discussion of the law of family provision in relation to carers. The focus is on English law, but comparative reference is made to other Commonwealth jurisdictions and particularly New South Wales, which has been described as the Australian state that deals with the most family provision claims.3 In all of the jurisdictions   Re Coventry (decd) [1980] Ch 461, 474 (Oliver J).   For a brief historical overview, see JK de Groot and BW Nickel, Family Provision in Australia, 3rd edn (Chatswood, LexisNexis Butterworths, 2007) ch 1. 3  M McGregor-Lowndes and F Hannah, ‘Reforming Australian Inheritance Law: Tyrannical Testators vs Greying Heirs?’ (2009) 17 Australian Property Law Journal 62, 69. 1 2



5.1 Introduction 137

under discussion, the relevant law has been extended beyond the ‘family’ as formally understood, such that the term ‘family provision’ is something of a misnomer. For the sake of conciseness, however, the term is used here. There are two broad questions to be addressed when discussing family provision, although these are inevitably interconnected. The first is which individuals should be eligible under a family provision statute. The second is in which circumstances relief should be granted to an eligible applicant and on what basis. Section 5.3 is primarily concerned with the first question, focusing on the potential eligibility of a ‘pure’ carer under a family provision statute. As explained earlier in the book, ‘pure’ carers are informal carers who provide a significant amount of support for a care recipient in the absence of a close familial or sexual relationship between the parties. For the purposes of this chapter, this effectively equates to a carer who is not automatically eligible under the 1975 Act by virtue of a formal familial relationship with the deceased. After outlining the development of family provision, the two potential categories of applicant under the current 1975 Act into which a ‘pure’ carer might bring himself are considered. These categories, the eligible cohabitant4 and the dependant, are contrasted with the notion of a ‘close personal relationship’ in New South Wales, which enables ‘pure’ carers to be recognised specifically and provided for out of a care recipient’s estate. This chapter demonstrates that many pure carers will fall outside the English legislation and that, ironically, a care recipient may in fact have a stronger claim against a carer’s estate. The argument pursued is that the adoption of a category similar to that used in New South Wales is likely to be a positive development for English law. It is nonetheless acknowledged that this could involve a fundamental change in the philosophy under­ pinning the 1975 Act. The potential need for fundamental reform is also demonstrated in section 5.4, which discusses the second crucial question. This question is the impact of the supply of care to the deceased on the granting of relief to the carer under a family provision statute. This issue requires a consideration of all potential applicants under the 1975 Act. The nature of relief for carers who are current or former spouses or civil partners, adult children, cohabitants and dependants in relation to the deceased is considered in turn. Again, comparative reference to the law of New South Wales is made, and the basis of relief for a party to a ‘close personal relationship’ discussed. It is demonstrated that the courts are ambivalent in their attitude towards the relevance of care, and that a carer is much more likely to 4   The term ‘eligible cohabitant’ is used as shorthand for a person who was living in the same household as the deceased as her spouse or civil partner for a period of two years ending with the deceased’s death, as required by ss 1(1A) and 1(1B) of the Inheritance (Provision for Family and Dependants) Act 1975.

138  Family Provision succeed if he can demonstrate a need for maintenance in the future rather than a devotion to the care of the deceased in the past. As a whole, the argument of this chapter is that family provision may need to move beyond dependency and consideration of future need in order to encourage informal carers and to reward them justly for their efforts. 5.2  JUSTIFYING THE USE OF FAMILY PROVISION LAW TO RECOGNISE THE CARER

In the introduction to this book, the justifications for using private law in general to support the informal carer were considered, albeit with reference to Oldham’s notion of ‘successional priority’.5 Issues relating speci­ fically to succession law, and in particular the matter of enforced provision by statute for carers in the absence of a promise of such provision, must be addressed. At the outset, it should be remembered that even where claims by or against carers are technically enforceable during the life of the care recipient (such as in estoppel or undue influence), they are often resolved only after death. The reality is therefore that any discretionary provision out of a care recipient’s estate will interact with claims considered elsewhere in this book.6 It could be argued that succession law is the ideal method by which to reward carers, if it is assumed that carers should be supported at least partially through private law mechanisms. The care recipient is no longer in need of her resources on her death, and the Privy Council has said that ‘a will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime’.7 There is also less scope for the awkwardness that could prevail between carer and care recipient if the subject of reward is discussed during the care recipient’s life. An analogy could be drawn with John Eekelaar’s writings on friendship.8 He discusses the concept of ‘full friendship’, which he sees as a ‘paradigmatic altruistic value’.9 Eekelaar argues that ‘full friendship should not be incentivized by the promise of external benefits’, since ‘[i]ts value lies in the personal and other benefits freely conferred by the friends on   See section 1.2.3 above.   cf Sir Nicholas Wall’s assertion that ‘in deciding whether the disposition of the deceased’s estate makes reasonable provision for the applicant, the trial judge is not exercising a discretion but making a value judgment based on his or her assessment of the factors contained in section 3(1) of the [English 1975] Act’: Ilott v Mitson [2011] EWCA Civ 346, [2011] 2 FCR 1 [27]. 7   Craig v Lamoureux [1920] AC 349 (PC) 356 (Viscount Haldane, giving the advice of the Board). 8   J Eekelaar, Family Law and Personal Life (Oxford, Oxford University Press, 2007) ch 2. 9   ibid 37. 5 6



5.2  Use of Family Provision Law 139

each other for each other’s sake’.10 He is uncomfortable with the idea that such relationships should generate an expectation of compensation if they break down. This, Eekelaar argues, would ‘negate’ any ‘voluntary sacrifices’ made, and remedies should be confined to the restoration of benefits that ‘can be characterized as an earned share in assets treated in common by the friends’.11 The significant point for present purposes, however, is that in Eekelaar’s view a claim on the death of one of the parties would ‘fit in with the values of friendship’.12 Many of the care situations discussed in this book could be distinguished from a notion of friendship because there is less mutuality in terms of the benefits conferred and the carer may not be acting entirely gratuitously and altruistically.13 The distinction between inter vivos provision and provision on death nevertheless remains valid. Even so, the use of family provision statutes to reward or compensate a carer could be criticised for undermining testamentary freedom on the one hand and defeating the expectation that family members who are not carers will receive a share in the estate on the other. These criticisms are evaluated in the following subsections. 5.2.1  Testamentary Freedom and the Purposes of Succession Law Peart summarises the accepted purposes of succession law as being ‘to consider the wishes of the individual . . . the preservation and security of the family, and . . . [the protection of] the welfare of society in general by promoting the equalization of fortunes’.14 On this analysis, freedom of testation is not the sole principle governing succession law and there is an inevitable tension between Peart’s aims. Indeed, writers such as Locke and Grotius regarded freedom of testation as inherent in Natural Law, while also accepting a child’s natural right to succeed to their parent’s estate.15 In the present context, a more fundamental problem is that, at first glance, provision for a carer (other than on the basis of his inclusion in a will or his familial relationship with the deceased) might struggle to satisfy any of these purposes. If the argument that there should be a shift   ibid 48.   ibid 48. 12   ibid 48. 13   When discussing care specifically, Eekelaar expresses concern about the power implications of care relationships: ibid 178–79. For criticism, see J Herring, Older People in Law and Society (Oxford, Oxford University Press, 2009) 128–29. 14   N Peart, ‘The Direction of the Family Protection Act 1955’ [1994] New Zealand Recent Law Review 193, 210. 15   See A Borkowski, Textbook on Succession, 2nd edn (Oxford, Oxford University Press, 2002) 255 for discussion. 10 11

140  Family Provision towards desert to support carers is accepted,16 it may be that the rationale of succession law is in need of re-evaluation. Even if Peart’s rationales are preferred, however, a relatively modest extension of them could justify provision for a carer. Each of the rationales are now addressed with the potential for extension in mind. 5.2.1.1  The Wishes of the Deceased In some cases provision for a carer may in fact reflect the wishes of the deceased.17 The Law Commission recently asserted that scenarios involving carers ‘cry out for discussion and planning [by making a testamentary disposition] before it is too late’.18 Nevertheless, since only 36 per cent of English and Welsh respondents to a survey by the National Consumer Council had made a will,19 and some of those who do make testamentary provision for a carer can be thwarted by mechanisms such as survivorship,20 mutual wills21 or challenges to testamentary capacity,22 it could be thought that family provision for a carer would give effect to the true wishes of the deceased in many cases. That said, where a will is made, it has been suggested that most testators bequeath property based on the formal ‘positions’ of each beneficiary in relation to the deceased,23 that is the category of family member to which a beneficiary belongs. This would imply that little account is taken of the particular relationship between each individual and the deceased.24 However, more recent research by Gillian Douglas and others suggested that where respondents were asked about their attitudes to will-making and family provision (as distinct from the intestacy rules), they were more likely to think that ‘more subjective properties could be taken into consideration, such as commitment, reciprocity, dependency and emotional closeness’.25 In any case, one study found that respondents disapproved   See section 1.2.2.1 above.   See JC Tate, ‘Caregiving and the Case for Testamentary Freedom’ (2008) 42 University of California Davis Law Review 129 for a defence of freedom of testation precisely on the basis that it enables care recipients to reward caring family members. 18   Law Commission, Intestacy and Family Provision Claims on Death (Law Com No 331, 2011) [6.93]. 19   S Brooker, ‘Finding the Will: A Report on Will-writing Behaviour in England and Wales’ (National Consumer Council, 2007). See also G Douglas et al, ‘Inheritance and the Family: Public Attitudes’ [2010] Family Law 1308, 1311, whose survey elicited a near-identical figure of 37%. 20  See, eg Campbell v Griffin [2001] EWCA Civ 990, [2001] WTLR 98. 21   See, eg Charles v Fraser [2010] EWHC 2154 (Ch), [2010] WTLR 1489. 22   See, eg Baker v Baker [2008] EWHC 937 (Ch), [2008] 2 FLR 767. 23   J Finch et al, Wills, Inheritance and Families (Oxford, Clarendon Press, 1996) 124. 24   Izuhara contrasts this position with the tradition in Japan (now in decline), whereby the eldest son and his wife are placed under a duty to provide care to the parents, and the son inherits the house in return: M Izuhara, Housing, Care and Inheritance (Abingdon, Routledge, 2008). 25   Douglas et al, ‘Inheritance and the Family: Public Attitudes’ (n 19) 1311. 16 17



5.2  Use of Family Provision Law 141

of linking inheritance with care,26 although there is also evidence to the contrary.27 Douglas and others found that only 5 per cent of respondents intended to include ‘friends’ (presumably non-family members) in their will.28 Those who felt that carers should be included in the intestacy rules sought to see this limited by blood relationship or length of care. Others, meanwhile, felt that carers should not automatically be entitled under the intestacy rules. One group of respondents felt strongly that ‘carers should not be entitled in any circumstances’, due to concerns about motives and views of the altruistic and choice-based nature of caring.29 The perceived importance of giving effect to the wishes of the deceased may lead to an argument that the law should provide for carers only when a promise has been made by the care recipient and relied upon by the carer. In turn, it could be that the mechanisms addressing unconscionability of dealing such as those considered in previous chapters, and not family provision statutes with their potential to remedy unconscionable outcomes, should supplement the general law of testate succession in this context. Nevertheless, it should be borne in mind that the intentions of the deceased are not necessarily relevant in relation to family provision claims by any eligible applicants. Stephen Cretney appears to argue for a different approach to family provision in cases where there is a will as compared to intestacy, since there is a greater danger of defeating the deceased’s intentions in the former case.30 This argument has not recently found favour with the courts, although the motivations of the deceased in failing to make provision for an applicant are not entirely irrelevant.31 In the Queensland case of Re Russell, Lucas J opined that ‘[t]he fact that the distribution is statutory [under intestacy] is not a fact which assumes any particular importance’,32 although in the New South Wales legislation ‘any evidence of the testamentary intentions of the deceased person, including evidence of statements made by [her]’ is expressly included as a relevant factor.33 Whatever the relevance of the deceased’s wishes, since society and the law are sometimes content to override them in order to provide for her 26   K Rowlingson, ‘Attitudes to Inheritance: Focus Group Report’ (Bath, University of Bath, 2004). 27  See, eg DG Drake and JA Lawrence, ‘Equality and Distributions of Inheritance in Families’ (2000) 13 Social Justice Research 271. 28   Douglas et al, ‘Inheritance and the Family: Public Attitudes’ (n 19) 1315. 29   ibid 1316. 30   SM Cretney, Family Law in the Twentieth Century: A History (Oxford, Oxford University Press, 2003) 514–15. See Law Commission, Intestacy and Family Provision Claims on Death (n 18) [1.23] for an argument against such a suggestion. 31  See Kerridge, Parry and Kerridge: The Law of Succession, 12th edn (London, Sweet & Maxwell, 2009) [8-31] for discussion. 32   Re Russell [1970] QWN 22. 33   Succession Act 2006 (NSW), s 60(j).

142  Family Provision family, it could be argued that it should be willing to do the same for her carer. 5.2.1.2  The Security of the Family Turning to the second of Peart’s rationales, the preservation and security of the family is furthered by care given to the deceased before death. It may therefore be legitimate to use family provision statutes to support and reward the carer. If part of the justification for rewarding the family is the idea that it is a mutually interdependent unit and that the property should be shared between the constituents of that unit, it is certainly arguable that even the non-familial carer should have the opportunity to make a claim on the estate. 5.2.1.3  The Welfare of Society Finally, the welfare of society is protected (although not specifically through ‘the equalization of fortunes’) since, following the principled arguments considered in the introduction to the book, it is in society’s interest to reward and support informal carers. Any reformulation of the purposes of succession law is likely to be controversial, however, and some will object on the basis that children and other family members will be ‘disinherited’. These arguments are considered in the next subsection. 5.2.2  Provision for Carers and Expectant Heirs Whether or not provision for carers is consistent with the overall purposes of succession law, it could be argued that such provision would be contrary to the interests of those who are perceived as having a legitimate claim on the estate of the deceased by virtue of their familial relationship with her. Nevertheless, Myles McGregor-Lowndes and Frances Hannah have questioned whether family provision is justifiable at all in the twenty-first century.34 Moreover, Peart claims that as well as restricting testamentary freedom, claims against estates in New Zealand are ‘unprincipled, uncertain in scope and unpredictable as to outcome’.35 In 1985 John Ross Martyn argued that children of the deceased had a ‘moral claim’ on their parent’s estate, irrespective of whether they were in 34   McGregor-Lowndes and Hannah, ‘Reforming Australian Inheritance Law: Tyrannical Testators vs Greying Heirs?’ (n 3) 70. 35   N Peart, ‘New Zealand’s Succession Law: Subverting Reasonable Expectations’ (2008) 37 Common Law World Review 356, 357.



5.2  Use of Family Provision Law 143

need.36 Lawrence Frolik has gone as far as to claim that human beings are ‘predisposed to leaving a legacy to our children by our own genetic and cultural legacies’.37 Moreover, a presumption that certain family members should inherit a deceased person’s estate is reflected in the intestacy rules38 and in the practice of testators.39 Arguments about entitlement to inheritance would be particularly influential in those jurisdictions where certain relatives receive fixed portions of an estate.40 Such systems illustrate that ‘moral claims’ relating to inheritance, including those of spouses and children, are considered by some to be legitimate. That said, carers are sometimes provided for even in those jurisdictions41 and the Scottish Law Commission have expressed doubt about the cogency of the fixed system prevailing in that jurisdiction.42 Writing from a common law perspective, Peart and Borkowski claim that ‘the great potential for harm resulting from the disinheritance of children is obvious’.43 That could indeed be true in situations where there are dependent minor children to whom the deceased would owe a duty of support if she were still alive. On the other hand, the fact that people are living longer could mean that parents expect their children to achieve financial independence rather than relying on inheritance.44 Even historically, the potential for unearned distributions from estates has been invoked as a justification for limiting both testamentary freedom and rights of inheritance.45 This is related to Blackstone’s contention that wills were introduced as a result of the prevalence of ‘disobedient and headstrong’ heirs.46 It is therefore possible to doubt the cogency of perceived rights of inheritance solely on the basis that a person is the son or 36   JG Ross Martyn, Family Provision: Law and Practice, 2nd edn (London, Sweet & Maxwell, 1985) 43. 37   LA Frolik, ‘The Biological Roots of the Undue Influence Doctrine: What’s Love Got to do with it?’ (1996) 57 University of Pittsburgh Law Review 841, 875. 38   See section 5.4.2 below. 39   Finch et al, Wills, Inheritance and Families (n 23). 40   See, eg MJ De Waal, ‘Comparative Succession Law’ in M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford University Press, 2006); C Castelein, R Foqué and A Verbeke (eds), Imperative Succession Law in a Late-Modern Society: Five Perspectives (Antwerp, Intersentia, 2009). 41   See, eg G Otte, ‘Bessere Honorierung von Pflegeleistungen – Plädoyer für eine Vermächtnislösung’ (2008) Zeitschrift für Erbrecht und Vermögensnachfolge 260; PA Windel, ‘Wie ist die häusliche Pflege aus dem Nachlass zu honorieren?’ (2008) Zeitschrift für Erbrecht und Vermögensnachfolge 305; U Köbl, ‘Die Neuordnung des erbrechtlichen “Pflegeausgleichs” (§2057a BGB–§2057b E-BGB)’ in T Helms and JM Zeppernick (eds), Lebendiges Familienrecht. Festschrift für Rainer Frank zum 70. Geburtstag am 14. Juli 2008 (Frankfurt am Main, Verlag für Standesamtswesen, 2008). 42   Scottish Law Commission, Report on Succession (Scot Law Com No 215, 2009). 43   N Peart and A Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (2000) 12 Child and Family Law Quarterly 333, 343. 44   K Rowlingson, ‘“Living Poor to Die Rich”? Or “Spending the Kids’ Inheritance”? Attitudes to Assets and Inheritance in Later Life’ (2006) 35 Journal of Social Policy 175. 45   Peart, ‘The Direction of the Family Protection Act 1955’ (n 14) 212. 46   W Blackstone, Commentaries on the Laws of England (1765–69) Book II 12.

144  Family Provision daughter of the deceased, and the courts have done so when considering family provision claims by adult children.47 The issue of whether a moral claim on a parent’s estate can exist when it is based solely on a child’s familial relationship with that parent bears some similarities to recent debates on the presumption of advancement. Such a presumption could rebut the usual presumption of resulting trust, which itself applies where property is transferred and the transferee does not provide the whole of the consideration.48 Traditionally, the counter­ acting presumption of advancement applied where property is transferred from father to child49 or from husband to wife, although it is increasingly recognised as being outdated. Speaking for the majority of the Supreme Court of Canada in Pecore v Pecore, Rothstein J noted that ‘a principal justification for the presumption of advancement is parental obligation to support their dependent children’.50 This meant that the presumption should not apply in respect of ‘independent adult children’.51 Since Rothstein J was reluctant to apply the presumption even to dependant adult children, it is clear that the affection inherent in the parent–child relationship was considered to be insufficient in itself. In the English Court of Appeal, Lord Neuberger recently described it as ‘a relatively weak presumption which can be rebutted on comparatively slight evid­ ence’ and one that is ‘even weaker where . . . the child was over 18 years of age and managed her own affairs at the time of the transaction’.52 The presumption was abolished (prospectively) by the Equality Act 2010,53 although the legislation has not yet been commenced. Similar arguments could be made in the case of a spouse, civil partner or unmarried cohabitant. There would be great injustice if such a person were left destitute through the operation of testate or intestate succession because he was genuinely dependent on the deceased before her death, perhaps as a result of giving up work to look after children of the relationship. Any perceived injustice is less severe where the applicant is ‘dis­ inherited’ and makes a claim based solely on the marital or conjugal relationship he shared with the deceased, although the anxiety to avoid   See section 5.4.9 below.   See, eg K Gray and SF Gray, Elements of Land Law, 5th edn (Oxford, Oxford University Press, 2009) [7.2.33]–[7.2.37]. For the Canadian view that the presumption of advancement can arise independently of the presumption of resulting trust, see Pecore v Pecore [2007] SCC 17, [2007] 1 SCR 795 [27] (Rothstein J). See also R Chambers, ‘Is There a Presumption of Resulting Trust?’ in C Mitchell (ed), Constructive and Resulting Trusts (Oxford, Hart Publishing, 2010). 49   The High Court of Australia was content to apply the presumption between mother and child in Nelson v Nelson [1995] HCA 25, (1995) 184 CLR 538. 50   Pecore v Pecore (n 48) [36]. 51   ibid [36]. 52   Laskar v Laskar [2008] EWCA Civ 347, [2008] 1 WLR 2695 [20]. 53   Equality Act 2010, s 199. cf J Glister, ‘Section 199 of the Equality Act 2010: How Not to Abolish the Presumption of Advancement’ (2010) 73 Modern Law Review 807. 47 48



5.2  Use of Family Provision Law 145

discrimination against a homemaking spouse in the context of relief on divorce may reduce the effect of this argument.54 It is not necessarily the case, therefore, that succession law should give effect to expectations of inheritance based on familial relationships alone. Indeed, Rowlingson and McKay found that an expectation of inheritance was by no means universal among the cohort selected for their empirical study, although 90 per cent of those who did expect to receive a bequest expected it to come from their parents.55 The diminishing significance of familial relationships in themselves in the context of property dealings may reduce the perceived moral entitlement of children to inherit their parents’ property and benefit carers. At the same time, the corresponding recognition of the potential for independence among adult children could work against those who have in fact provided care for the parent. This is illustrated in section 5.4.9 below. The corollary of doubt about provision for non-dependants on the basis of familial relationship alone is that provision for those who might be said to have ‘earned’ it (including carers) may be a legitimate aim for succession law. Indeed, Baroness Deech has criticised the law of family provision in England and Wales for continuing to ‘prefer the idle sexual partner over the deserving family member’ who may have provided care.56 In the context of proposed reforms to testamentary promises and family provision legislation, the New Zealand Law Commission have written that it is undesirable to confuse provision made in order to support family members and that made with the aim of ‘rewarding valuable services for which the [deceased] should in fairness pay’.57 Moreover, just as family members do not necessarily expect to receive a bequest on the death of a relative, there is evidence that most people legitimately expect to make a contribution towards formal care (whether for themselves or someone else).58 Many nevertheless resent the idea that they should sell their homes in order to pay for care,59 and the UK Government has expressed a desire to ‘protect the assets’ of those in need of care.60   See section 5.4.5.1 below.  K Rowlingson and S McKay, ‘Attitudes to Inheritance in Britain’ (Bristol, Joseph Rowntree Foundation, The Policy Press, 2005). 56   R Deech, ‘Sisters Sisters – and Other Family Members’ [2010] Family Law 375, 380. 57   New Zealand Law Commission, Succession Law: Testamentary Claims (Preliminary Paper No 24, 1996) [302]. 58   Caring Choices, ‘The Future of Care Funding: Time for a Change’ (London, King’s Fund, 2008) 14. 59   Rowlingson, ‘“Living Poor to Die Rich”? Or “Spending the Kids’ Inheritance”? Attitudes to Assets and Inheritance in Later Life’ (n 44) 177, and the references there cited. See also Commission on Funding of Care and Support, Fairer Care Funding (Commission on Funding of Care and Support, 2011) 12. 60   HM Government, The Coalition: Our Programme For Government (Cabinet Office, 2010) 30; Department of Health, Caring for our Future: Progress Report on Funding Reform (Cm 8381, 2012) 16. 54 55

146  Family Provision In any case, a willingness to pay for care does not detract from the potential for hardship if a carer is rewarded at the expense of at least those others who were genuinely dependent on the deceased. A compromise is therefore necessary if carers are to be recognised within family provision law. 5.2.3  The Implications of Feminist Arguments and a Compromise It has been seen that the use of family provision statutes to compensate the carer is likely to meet objections from those who emphasise either testamentary freedom or a perceived moral entitlement based on a blood or sexual relationship with the deceased.61 At the other end of the spectrum, such usage of succession law is unlikely to satisfy scholars such as Fineman. Given the high opportunity costs of caring, a reward given to a carer after he has finished caring in a sense comes too late. Indeed, some care recipients who participated in a qualitative study by Misa Izuhara ‘tried to compensate [their familial carers] on the spot rather than let them accumulate any advantage and pass it on to them at death’,62 and Lisa Glennon has argued that: ‘Any serious attempt to aid the position of caregiving relatives requires a discourse which goes further than [inter alia] looking at the financial implications on the death of a person being cared for.’63 On the other hand, one judge has described substantial inter vivos payments for care provided by a relative as potentially ‘inconsistent with a close relationship of affection’.64 The problem of delay could be solved using Oldham’s proposals regarding equity release and state-sponsored loans. Nevertheless, such an approach could be problematic for at least three reasons. First, equity release could remove one of the main justifications for using succession law given above, namely that the care recipient has no further need of her property at the time it is subject to a claim by the carer. Secondly, the prospect of immediate remuneration for care services provided might foster undesirably mercenary thoughts in the minds of carers. Admittedly, however, the converse situation whereby a carer has a vested interest in the death of the care recipient could be equally problematic. Thirdly, inter 61  In Perrins v Holland [2009] EWHC 1945 (Ch), [2009] WTLR 1387, a son of a testator sought provision under the English Inheritance (Provision for Family and Dependants) Act 1975 where the estate had been left to a woman whom the deceased described (perhaps misleadingly) as his ‘carer’ (1). The trial and the appeal ([2010] EWCA Civ 840, [2011] Ch 270), however, focused on testamentary capacity and want of knowledge at approval. See also Palagiano v Mankarios [2011] NSWSC 61 and Hyatt v Covalea [2011] VSC 334. 62   M Izuhara, ‘Negotiating Family Support? The “Generational Contract” between Longterm Care and Inheritance’ (2004) 33 Journal of Social Policy 649, 660. 63   L Glennon, ‘Displacing the Conjugal Family in Legal Policy – A Progressive Move?’ (2005) 17 Child and Family Law Quarterly 141, 148. 64   Barlevy v Nadolsk [2011] NSWSC 129 [168] (Slattery J).



5.3  Eligibility under Inheritance Act 1975 147

vivos equity release could be seen as being inconsistent with the discretionary nature of a family provision claim. Until large-scale structural changes to society are made, it could be said rewarding carers out of the estate of a care recipient is better than nothing. In any event, the fact that a receipt of a carer’s pension or allowance does not preclude a claim by a carer under the New South Wales legislation considered in section 5.3.4 may suggest that even adequate public support does not affect the legitimacy of a private law claim.65 The argument to be pursued here is a modest compromise between public and private provision. It is suggested that if policy-makers are content to redistribute estates by statute to individuals with some connection to the deceased, carers should be included in the pool of potential applicants and care should be relevant when deciding upon any relief to be granted. This is true at least in the absence of comprehensive state provision. In any event, a claim should certainly not be prejudiced as a result of care provided. As demonstrated in section 5.3, this is still possible in the case of a dependant’s claim under the English legislation. Nevertheless, the intention of this chapter is not to argue that the level of reward can necessarily be commensurate with the commercial value of the services provided, that a carer should necessarily trump the claims of others who expect a share in the care recipient’s estate, or that the care recipient’s wishes and intentions should be considered irrelevant. Moreover, succession law can never be an all-encompassing solution to the conundrum of support for carers. Part of the reason for this is that some care recipients will not leave significant assets behind them.66 What can be said is that, on the level of principle, succession law can be a useful tool in supporting informal carers in some circumstances. Section 5.3 considers the eligibility of the ‘pure’ carer for family provision in England and Wales. Comparisons are made with developments in other Commonwealth jurisdictions, and particularly New South Wales. The relevance of care provided by any eligible applicant to the quantification of any remedy is considered in section 5.4. 5.3  THE ELIGIBILITY OF THE ‘PURE’ CARER UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

Many carers will be eligible to apply for discretionary provision out of an estate under the 1975 Act by virtue of their familial or sexual relationship with the deceased. Eligible applicants include spouses and civil partners,67 ex-spouses and civil partners who have not remarried or 65   Woodland v Rodriguez [2004] NSWSC 1167. See also the text to nn 78–80 in section 1.2.2.2 above. 66   See section 1.2.3.4 above. 67   Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(a).

148  Family Provision formed a subsequent civil partnership,68 children69 and conjugal70 cohabitants of the deceased.71 For these categories of applicant, the primary issue to be determined for present purposes is whether the care they have provided does and should affect the likelihood that provision will be made at all under the Act, or increase the magnitude of such provision. This issue is discussed in section 5.4. Carers who shared neither a sexual nor a close familial relationship with the deceased face a much greater hurdle, since they may fall outside the parameters of the Act altogether. There are two categories of applicant under which such ‘pure’ carers72 can potentially qualify: namely the dependant73 and the eligible cohabitant. Each presents significant difficulties. This section begins with an historical overview of family provision, before discussing the potential for ‘pure’ carers to be accommodated within the 1975 Act as dependants or eligible cohabitants. The concept of a ‘close personal relationship’ from New South Wales is then discussed, before preliminary conclusions are offered on whether English law should adopt a ‘carer’ category for the purposes of family provision on death. 5.3.1  The Background to the 1975 Act This subsection outlines the history of succession law in England and in some Commonwealth jurisdictions. It considers the development of testamentary freedom before outlining the current law in England and considering some distinctive features of Australian family provision statutes in terms of the eligible applicants. 5.3.1.1  The Centrality of Testamentary Freedom The predominant principle of English succession law is that of testamentary freedom. While Nield claims that the principle has existed since feudal times,74 Borkowski argues that ‘testamentary freedom was severely   Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(b).   Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(c). Also included is a person who is not a legal child of the deceased but was ‘treated by the deceased as a child of the family in relation to [a] marriage or civil partnership’ to which the deceased was at any time a party: s 1(1)(d). See further section 5.4.9 below. 70   See section 5.3.3.1 below for a discussion of the extent to which an eligible relationship must be conjugal. 71   Inheritance (Provision for Family and Dependants) Act 1975, ss 1(1)(ba), 1(1A) 1(1B). 72   See section 1.2.1 above; cf the potential for ‘pure’ carers to benefit under the principles governing bona vacantia, discussed in section 5.4.3 below. 73   Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(e). 74   S Nield, ‘“If You Look After Me, I will Leave You my Estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (2000) 20 Legal Studies 85, 86. 68 69



5.3  Eligibility under Inheritance Act 1975 149

limited for much of English legal history’ and that testators were substantially unencumbered for only about a century.75 Under the present law, it is nonetheless perfectly possible for a care recipient to reward her carer by bequeathing property to him, although of course the converse is also true. This possibility contrasts with the position in many civil law jurisdictions, where testamentary freedom is limited by compulsory portions of the estate being reserved for particular family members. In this context, it is worth noting that in some jurisdictions these rules could be seen as offset by a correlative duty to maintain elderly parents.76 In England, the National Assistance Act 1948 removed adult children from ‘the circle of those who were expected to provide support’.77 The English Law Commission considered the introduction of compulsory portions for family members in 1971,78 but subsequently rejected the idea.79 Family provision is therefore an important exception to the general rule of testamentary freedom in England, Australia and New Zealand. The development of this exception is described in the following subsection. 5.3.1.2  The Development of Family Provision The concept of family provision did not originate in England. The New Zealand Testator’s Family Maintenance Act 1900 was the first statute in a common law jurisdiction to place testators under a legal duty to provide for their family and dependants.80 The Act was an attempt to prevent men from leaving their wives and children destitute by bequeathing their entire estate to persons outside the immediate family circle.81 It has been described as ‘highly significant landmark in the way in which common law jurisdictions dealt with succession to property on death’, since its  Borkowski, Textbook on Succession (n 15) 258.  Oldham, ‘Financial Obligations within the Family – Aspects of Intergenerational Maintenance and Succession in England and France’. See J Herring, Family Law 705–708 for a general discussion of the imposition of obligations on adult children towards their elderly parents, and also section 1.2.3.3 above. 77   N Wikeley, ‘Family Law and Social Security’ in R Probert (ed), Family Life and the Law (Aldershot, Ashgate, 2007) 100. 78   Law Commission, Family Property Law (Working Paper No 42, 1971) part 4. 79   Law Commission, First Report on Family Property: A New Approach (Law Com No 52, 1973). Kerridge points out that fixed entitlements were effectively provided to children in the nineteenth century through the use of marriage settlements: Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8-80]. 80   Nield, ‘“If You Look After Me, I will Leave You my Estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (n 74) 86 fn 6. 81   The position in New Zealand is now complicated by the fact that a surviving spouse or de facto partner can apply for division of the ‘relationship property’ when his partner dies, on the same basis as if the relationship had broken down during the lives of the parties. He can still make a family provision application to improve his position: see Peart, ‘New Zealand’s Succession Law: Subverting Reasonable Expectations’ (n 35) and D Webb et al, Butterworths Family Law in New Zealand, 14th edn (Wellington, LexisNexis, 2009) [7.430]. 75 76

150  Family Provision principles were adopted by all the Australian states and most of the Canadian provinces.82 The New Zealand statute was also influential in England, where the law on family provision is now governed by the Inheritance (Provision for Family and Dependants) Act 1975. The scope of family provision statutes in England and Wales, Australia and New Zealand has widened considerably as compared to their original forms.83 An applicant under the original English Inheritance (Family Provision) Act 1938 had to be a spouse, an unmarried or disabled daughter, or a son who was under 21 or disabled.84 Relief was limited to maintenance and subject to a maximum award of two-thirds of the net estate, and the Act applied only to testate succession. The 1938 Act was then the subject of piecemeal reforms. These included the extension of its application to intestacy,85 the inclusion of the former spouse who had not remarried as an eligible applicant,86 and the removal of the restrictions on the proportion of the estate that a claim could exhaust.87 5.3.1.3  Modern English Family Provision The Inheritance (Provision for Family and Dependants) Act 1975 removed the ‘maintenance’ restriction for spouses. Most significantly for present purposes, the 1975 Act extended the potential class of applicants to include all legal children of the deceased; those whom the deceased treated as a child of the family; and those who were factually dependent on the deceased irrespective of whether they had a familial relationship with her. Eligibility for unmarried cohabitants and civil partners was added in 1995 (following a recommendation of the Law Commission)88 and 2004 respectively.89 Further changes in the law could materialise in the near future: the Law Commission recommended a number of changes to the 1975 Act in its report published in December 2011.90 Before proceeding with the discussion, it must be noted that despite its wider scope, the 1975 Act is not considered to be a remedy for either unfairness or unjust enrichment.91 As the Law Commission recently put it: 82   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 333. 83   ibid 333; de Groot and Nickel, Family Provision in Australia (n 2) [1.6]. 84  For a detailed discussion of the 1938 Act, see Cretney, Family Law in the Twentieth Century: A History 485–98. 85   Intestates’ Estates Act 1952. 86   Matrimonial Causes (Property and Maintenance) Act 1958. 87   Family Provision Act 1966. 88   Law Commission, Distribution on Intestacy (Law Com No 187, 1989). 89   Law Reform (Succession) Act 1995; Civil Partnership Act 2004, sch 4(2), para 15. 90   See, generally, Law Commission, Intestacy and Family Provision Claims on Death (n 18). 91  J Masson, R Bailey-Harris and R Probert, Cretney’s Principles of Family Law, 8th edn (London, Sweet & Maxwell, 2008) 214.



5.3  Eligibility under Inheritance Act 1975 151

‘The 1975 Act responds primarily to need, rather than to fairness or desert’, and it did not seek significantly to alter that basic principle for fear of introducing uncertainty and subjectivity and curtailing testamentary freedom beyond what is necessary.92 The question to be asked by the court is not whether it would have been reasonable for the deceased to provide for the applicant, but effectively whether it was unreasonable for her not to have done so, although the Law Commission appeared to reject this specific suggestion in advance of the 1975 legislation.93 As Kate Green puts it, the court is given the difficult task of resolving ‘the claims of the testator to have her final wish enforced, the heir who may be deprived of her expectation . . . and of the applicant who has some moral claim to the estate’.94 As such, it is unsurprising that the emphasis in the Act and in the case law remains upon providing maintenance for dependants. Therefore, even if a carer is eligible under the Act and care is seen as a relevant consideration in ascertaining the extent of the provision that he should receive, it is arguable that this does not give effect to the underlying purpose of the Act. This argument is addressed briefly in the course of the present section, and subsequently in more detail during the discussion of the relevance of care to relief in section 5.4. 5.3.1.4  Distinctive Features of Australian Statutes It is worth noting that many Australian jurisdictions allow applications by parents and grandparents of the deceased, in most cases subject to various conditions.95 The requirement for a parental applicant in South Australia is particularly pertinent, since it requires care or maintenance to have been provided to the deceased by the applicant96 for a part of her lifetime.97 In Parente v Parente, for example, a ‘moral debt’ was said to be owed by the deceased towards the impoverished parents who had cared for him and funded his education.98 A sibling can claim on the same basis.99 The number of categories of applicants under the English 1975 Act can therefore seem comparatively small, although the dependant category is wide-ranging in some respects. Victoria has abandoned an approach based on categories of applicants altogether, preferring to allow the court to determine eligibility on the   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [1.19]–[1.22].   Law Commission, Family Property Law (n 78) [100]. 94   K Green, ‘The Englishwoman’s Castle – Inheritance and Private Property Today’ (1988) 51 Modern Law Review 187, 187. 95   de Groot and Nickel, Family Provision in Australia (n 2) [4.71]–[4.73]. 96   Inheritance (Family Provision) Act 1972 (South Australia), s 6(i). 97   Parente v Parente (1982) 29 SASR 310. 98   ibid 315 (White J). See also In the Estate of Terry (1980) 25 SASR 500. 99   Inheritance (Family Provision) Act 1972 (South Australia), s 6(j). 92 93

152  Family Provision basis of the responsibility of the deceased to provide for the applicant.100 However, it is doubtful whether this change has led to the judiciary taking a different approach.101 In Lee v Hearn, an applicant who cared for the deceased was held not to be eligible under the Victorian legislation in the circumstances of the case.102 The Court of Appeal confirmed the judge’s finding that the relationship between the two was ‘one of friendship but no more’.103 The applicant was said to have exaggerated his evidence, and it was decided that there could be no obligation owed towards him because the provision of rent-free accommodation ‘well and truly compensated’ for any caring services.104 Lee left open the possibility that a carer could bring a successful claim under the Victorian Act. In Unger v Sanchez it was said that ‘it would only be a rare and quite exceptional case which would justify a conclusion that the testator had a moral duty to provide’ for ‘the maintenance and support of a close friend or neighbour, even where such a person had rendered invaluable and selfless service or aid to the testator’,105 although provision was made on facts that revealed a ‘de facto relationship of parent and child’ between the claimant and the deceased.106 In any case, it is ironic that, as discussed in section 5.3.2, the provision of rent-free accommodation (as occurred in Lee) to a carer is likely to assist rather than hinder his application under the English 1975 Act because it would be a sign of dependence on the deceased. Australian provisions with more particular relevance to ‘pure’ carers are considered in section 5.3.4. In the next section the discussion returns to England for a detailed consideration of the eligibility of ‘pure’ carers under the 1975 Act. 5.3.2  ‘Pure’ Carers as Dependants As defined in section 1.2.1 above, a ‘pure’ carer is a person who provides a significant amount of care in the absence of a familial or conjugal relationship with the care recipient. If an unfavourable understanding of the cohabitant category prevails (on which see section 5.3.3 below), a ‘pure’ carer can bring a claim under the 1975 Act only if he can show himself to be a dependant of the deceased under section 1(1)(e). In order to do this, he must demonstrate that he was wholly or partly maintained by the deceased   Administration and Probate Act 1958 (Vic).   de Groot and Nickel, Family Provision in Australia (n 2) [4.1]. 102   Lee v Hearn [2005] VSCA 127, [2006] ALMD 5714. 103   Lee v Hearn [2002] VSC 208 [64] (Warren J). 104   ibid [71] (Warren J). 105   Unger v Sanchez [2009] VSC 541 [70] (Kaye J), cited in Forsyth v Sinclair [2010] VSCA 147 [86] (Neave JA). 106   Unger v Sanchez ibid [82] (Kaye J). 100 101



5.3  Eligibility under Inheritance Act 1975 153

immediately before the death.107 The dependant category was new to the 1975 Act, and was supported by the majority of the Law Commission’s consultees.108 Writing before the eligible cohabitant category was introduced in 1995, Stuart Bridge postulated that section 1(1)(e) of the 1975 Act generated more claims than the other categories put together.109 The problem for the carer can be sensed from the terminology of ‘dependency’ itself. While scholars of the ethic of care often focus on the interdependency of care relationships, the notion of dependency is more likely to be associated with the care recipient than with the carer. Nevertheless, there have been some successful claims by carers as ‘dependants’ under the 1975 Act. It is therefore necessary to explore the particular understanding of the term present in the Act, as interpreted by the judiciary. Section 5.3.2.1 begins this progress by discussing the concept of ‘maintenance’. 5.3.2.1  The Need to Demonstrate Maintenance Section 1(3) of the 1975 Act provides that an applicant ‘shall be treated as being maintained’ for the purposes of section 1(1)(e) if ‘the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of [the applicant]’.110 In Re Beaumont (decd),111 Megarry V-C held that an applicant is to be treated as being maintained only if he can satisfy the requirements of section 1(3), a construction that has been criticised.112 Moreover, the onus is ‘squarely’ on the applicant to prove both the contribution made by the deceased and the absence of full valuable consideration on his part.113 Of course, some carers will be completely unable to point to maintenance of any kind that has been provided for them by the care recipient, and the category will be of no use to them. Indeed, if anything, a finding that the carer maintained the now-deceased care recipient may be more likely. Prima facie, however, the requirements of sections 1(1)(e) and 1(3) may not seem problematic for some ‘pure’ carers. If a carer lived in a house owned by the care recipient, or if the care recipient paid for the carer’s meals in the course of their relationship, the wording of the statute   Inheritance (Provision for Family and Dependants) Act 1975, ss 1(1)(e), 1(3).   Law Commission, Family Property Law (n 78) [88]. 109   S Bridge, ‘Money for Nothing? Family Provision in Dire Straits’ [1991] Cambridge Law Journal 42, 43. 110   Inheritance (Provision for Family and Dependants) Act 1975, s 1(3). 111   Re Beaumont (decd) [1980] Ch 444. 112   S Naresh, ‘Dependants’ Applications under the Inheritance (Provision for Family and Dependants) Act 1975’ (1980) 96 Law Quarterly Review 534. 113   Re Wilkinson [1978] Fam 22, 23 (Arnold J). 107 108

154  Family Provision appears to permit a claim by the carer provided no contract was involved.114 Moreover, a generous interpretation of maintenance has been adopted. As District Judge Cardinal has written extra-judicially, ‘maintenance here does not have to be key to the survival of the applicant. The question is one of contribution’.115 The present view seems to be that it is the contribution by the deceased that must be substantial,116 rather than the difference between the respective contributions of the deceased and the applicant. This treats the ‘full valuable consideration’ question separately, a view preferred by Borkowski on the basis that it is more in keeping with the wording of the statute.117 One limitation is that maintenance is seemingly understood as a continuing concept. The result of this is that a ‘one-off outright gift’ made years before the death cannot constitute relevant maintenance,118 and the payment of past debts cannot do so either unless that facilitated future income or represented living expenses since the death.119 This element of continuity also reflects the requirement that the maintenance be provided immediately before death, although the courts are flexible in this regard since they look to the settled state of affairs between the parties.120 In general, the concept of ‘maintenance’ itself has the potential to be useful for some ‘pure’ carers. That said, subsection 5.3.2.2 discusses the current requirement that the maintenance is provided in the absence of ‘full valuable consideration’, which significantly undermines that usefulness. 5.3.2.2  The Expansive Concept of ‘Full Valuable Consideration’ In spite of the relatively generous interpretation of ‘maintenance’, serious difficulties have been caused by the interpretation of the phrase ‘full valuable consideration’, which has not been limited to consideration under a contract. This makes it possible for an applicant who has conferred some benefit on the deceased to have provided full valuable consideration to her, and therefore to be ineligible under the Act. That possibility, in turn, is obviously highly significant for the present discussion, since the very 114   cf the difficulty presented by the ‘full valuable consideration’ element, discussed in section 5.3.2.2. 115   M Cardinal, ‘In Practice – Inheritance or Estoppel – How the Cohabitant Succeeded’ [2004] Family Law 362, 364. 116   S Ross, ‘Inheritance Act Claims by Dependants’ [2010] Family Law 490 criticises the Law Commission (in Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (Law Com CP No 191, 2009)) for apparently taking the opposite view. 117  Borkowski, Textbook on Succession (n 15) 264. 118   Baynes v Hedger [2008] EWHC 1587 (Ch), [2008] 2 FLR 1805 [154] (Lewison J). 119   Baynes v Hedger [2009] EWCA Civ 374, [2009] 2 FLR 767 [45] (Sir Andrew Morritt). 120   Jelley v Iliffe [1981] Fam 128 (CA) 136 (Stephenson LJ). This is similar to the courts’ treatment of the minimum duration requirement for cohabitants: see the discussion of Gully v Dix [2004] EWCA Civ 139, [2004] 1 WLR 1399, in section 5.3.3.3 below.



5.3  Eligibility under Inheritance Act 1975 155

nature of a ‘pure’ carer’s relationship with the deceased means that he has conferred some benefit upon her. Although it is intuitive to think that a care recipient is providing consideration for the care by maintaining her carer, it is important to note that for present purposes, the applicant is said to be providing consideration for the maintenance by virtue of the care. Indications that a wide interpretation of ‘full valuable consideration’ would be employed were present in the first reported case121 on section 1(1)(e), Re Wilkinson (decd).122 In this case, the deceased, Constance, told her sister Gladys, the applicant, that she would receive nothing from Constance’s estate if she did not come and live with Constance in order to look after her. The two came to an arrangement whereby Gladys would receive free board and lodging in return for looking after Constance, lending the case a distinct flavour of ‘unconscionability of dealing’. Arnold J admitted that: ‘It is not very easy . . . to measure in purely financial terms the sort of things which the claimant was doing for her sister and the sort of thing which the claimant represented to her sister, namely a companion.’123 In spite of this, he was adamant that this was what he must do ‘in order to see whether, fairly looked at, they were a full valuable requital or return for that which the claimant received from her sister’.124 The judge even found that disturbance to Gladys’s sleep formed part of the consideration that she had given to Constance. Despite this painstaking inquiry, the judge allowed Gladys to proceed with her claim since ‘the whole of the household was run at the expense of [Constance]’,125 and full valuable consideration had not been provided. Although the outcome was favourable for the applicant, Hilary Clark criticised Arnold J’s approach, on the basis that: ‘It seems to follow that if Gladys had done more for her sister she would have supplied “full valuable consideration”.’126 Clark argued that ‘full valuable consideration’ should be confined to that paid under a contract, since this was the intention of both the Law Commission and Parliament.127 Indeed, the injustice of entering into a balancing exercise such as that performed by Arnold J in order to preclude a claim by a carer is readily apparent. Even if it is considered undesirable to use family provision statutes specifically to remunerate carers, care should not therefore be allowed to prejudice a claim by an applicant who is eligible under the Act on some other basis. Although Megarry V-C approved Arnold J’s approach in Re Beaumont,128 Clark was certainly correct that the Law Commission intended cohabitants   See H Clark, ‘Deserving Mistresses Shunned?’ (1978) 41 Modern Law Review 352, 352.   Re Wilkinson (decd) [1978] Fam 22. 123   ibid 25. 124   ibid 25. 125   ibid 25. 126   Clark, ‘Deserving Mistresses Shunned?’ (n 121) 353. 127   ibid 353–54. 128   Re Beaumont (decd) (n 111). 121 122

156  Family Provision to be included within the definition of dependant in a discussion significantly pre-dating the eventual introduction of the ‘cohabitant’ category in 1995.129 This might suggest that domestic services were not intended to constitute ‘consideration’ for the purposes of section 1(3). On the other hand, the Commission’s specific implication that a housekeeper who was being housed and fed but provided ‘purely nominal services’ could be a dependant signals that providing more than nominal services might preclude a claim under the Act.130 Even if it is accepted that ‘consideration’ should be widely understood, the difficulty faced by the courts in valuing domestic services has been pointed out.131 The Law Commission acknowledged that there would be difficult questions concerning whether or not someone was being maintained if he did something in return.132 The Commission declined to provide an answer to such questions, preferring instead that they be resolved ‘by the court on commonsense lines’.133 In 1989, they reported that many of their consultees criticised the narrow interpretation of ‘dependence’ in the Act, since it included those who had done nothing in return for their upkeep and excluded those who had given full value for it.134 Subsequently, the courts have shown some flexibility in relation to their understanding of ‘full valuable consideration’.135 In Jelley v Iliffe, Stevenson LJ opined that the court must balance the contributions of the parties and the matter must go to trial unless the contributions are clearly equal or bound to come down in favour of the applicant having made a greater contribution.136 Griffiths LJ emphasised the importance of common sense and did not think it fair to deny a claim to a cohabitant who did domestic work on the basis that she was performing services that would have outweighed the deceased’s contribution if she had been a paid housekeeper.137 This did not go far enough for John Dewar, however, who argued that a weighing-up process of any kind was ‘objectionable and . . . inimical to the true intentions of the Act’.138 In Plumley v Bishop, Butler-Sloss LJ was content to discount domestic services that were attributable to mutual love and affection in the assess129   Law Commission, Second Report on Family Property: Family Provision on Death (Law Com No 61, 1974) [91]. 130   ibid [98]. 131   Naresh, ‘Dependants’ Applications Under the Inheritance (Provision for Family and Dependants) Act 1975’ (n 112). 132   Law Commission, Second Report on Family Property: Family Provision on Death (n 129) [98]. 133   ibid [98]. 134   Law Commission, Distribution on Intestacy (n 88) [59]. 135   See the recent case of Lindop v Agus [2009] EWHC 1795 (Ch), [2010] 1 FLR 631. 136   Jelley v Iliffe (n 120) 138. This was in spite of his concern that a small estate can easily be consumed by litigation. 137   ibid 141. 138   J Dewar, ‘Cohabitees: Contributions and Consideration’ [1982] Family Law 158, 160.



5.3  Eligibility under Inheritance Act 1975 157

ment of whether full valuable consideration had been provided.139 She considered it important to avoid ‘fine balancing computations involving the value of normal exchanges of support in the domestic sense’.140 Bridge has welcomed the approach taken in Plumley, while admitting that it sits somewhat uneasily with previous authority.141 Butler-Sloss LJ’s reference to ‘normal exchanges of support’ may be problematic, since the support involved could be seen as exceptional in many care cases. Nevertheless, the care that the successful applicant gave to the deceased after he developed angina in Plumley itself was exceptional, although much weight was given to the fact that the deceased had provided secure housing for himself and the applicant. Another problem could be that Butler-Sloss LJ placed considerable emphasis on the marriage-like relationship at issue in Plumley (which was decided before the introduction of the ‘eligible cohabitant’ category), suggesting that it could be more difficult for a ‘pure’ carer to show dependency. Her analysis also runs contrary to the significance of motives of love and affection142 and ‘normal’ services143 in jeopardising dealings-based claims considered elsewhere in the book. In Bouette v Rose,144 Butler-Sloss LJ’s approach was applied to a situation in some respects more analogous to ‘pure’ care. In that case, the claimant applied for provision out of the estate of her daughter, who had died at the age of 14 from disabilities caused at birth due to medical negligence. The deceased had obtained a settlement which was controlled by the Court of Protection of her negligence claim against the health authority. The Court of Protection contributed 75 per cent of the purchase price of a bungalow in which the applicant and her daughter lived, with the applicant making up the remainder. The applicant also received regular housekeeping payments from the same source. The Court of Appeal accepted that she had therefore been ‘maintained’ by her daughter. Kerridge accepts that some would find it ‘not entirely easy’ to see how the mother was being maintained by her daughter, although he points out that she had given up work and that her only other sources of income were welfare benefits.145 As currently interpreted, therefore, the phrase ‘full valuable consideration’ is not as problematic for the carer as it once was, although it could be a stumbling block if the amount of care provided is unquestionably seen to outweigh the contribution made by the deceased. A specific ‘carer’ category may be necessary to remedy this deficiency.   Plumley v Bishop [1991] 1 WLR 582 (CA).   ibid 587. 141   Bridge, ‘Money for Nothing? Family Provision in Dire Straits’ (n 109) 44–45. 142   See, eg section 2.2.3.3 above. 143   See, eg section 3.4.2. 144   Bouette v Rose [2000] Ch 662 (CA). See, similarly, Stephens v Perpetual Trustee Company Ltd [2009] NSWSC 1078, [2011] ALMD 490. 145  Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8.78]. 139 140

158  Family Provision Nevertheless, the Law Commission have proposed dramatic reform of the application of the ‘full valuable consideration’ test within the existing dependency category. Their December 2011 Report on intestacy and family provision recommended that the ‘balance sheet test’146 should be abolished. They did so because the applicant is potentially prejudiced by providing services for the deceased, as discussed above. The Commission also criticised the current approach for failing to account for the fact that ‘an applicant may be dependent, not upon the deceased as such, but on the continuance of a relationship of mutual dependency’.147 In evaluating the mechanism for reform, the Consultation Paper published in advance of the Report appeared to reject a sharp distinction based on whether the relationship was commercial or professional on the one hand, or more personal on the other. The Commission considered it undesirable to exclude claims by professionals entirely, given the definitional problems involved. They preferred an approach based on factual dependency on the relationship rather than on a ‘flow of benefits’ from the deceased to the applicant.148 Ultimately, however, the person/commercial distinction was utilised in the Commission’s Draft Bill. That Bill restricts the application of the ‘full valuable consideration’ test to an ‘arrangement of a commercial nature’,149 removing the need to weigh up the respective contributions of the deceased and the applicant in respect of non-commercial arrangements. Difficulties would still arise over the precise distinction between commercial and non-commercial situations,150 although the focus on arrangements rather than relationships mitigates this possibility and accommodates relationships that change over time.151 The proposed change would increase the likelihood of a successful claim for some carers, and the proposal is to be welcomed. It would not, however, aid those carers who were not maintained by the care recipient at all. 5.3.2.3  An Assumption of Responsibility? In addition to the more flexible interpretation of ‘full valuable consideration’, another matter of interpretation has been resolved by the courts in a way that benefits some carers. The Court of Appeal in Bouette rejected the argument that there had to be an express assumption of responsibility by the deceased towards the applicant, or that the money had to be intended to maintain the applicant. The fact of maintenance was said to be sufficient, especially since the Court of Protection was acting as the conscience   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.75].   Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (n 116) [6.22]. 148   ibid [6.27]. 149   Inheritance and Trustees’ Powers Bill, sch 2, para 4. 150   cf the discussion of similar issues relating to estoppel in section 2.2.1.6 above. 151   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.79]. 146 147



5.3  Eligibility under Inheritance Act 1975 159

of the deceased. As Stephenson LJ asked in the previous case of Jelley v Iliffe, ‘how better or more clearly can one take on or discharge responsibility for maintenance than by actually maintaining?’152 This echoes the emphasis on the particular factual situation contained in the original Law Commission Report in which the ‘dependant’ category was proposed.153 The court in Bouette also reached its conclusion in spite of the fact that it would have been obliged to consider the extent to which the deceased assumed responsibility for the applicant when deciding on an appropriate remedy. Nevertheless, Gillian Douglas points out the court’s ‘obvious frustration’ at being unable to avoid considering the assumption of responsibility altogether at the eligibility stage due to the earlier authorities of Jelley and Re Beaumont.154 Following Bouette, the extent to which the deceased assumed responsibility is still relevant to the jurisdiction question,155 although it seems that the fact of maintenance effectively raises a presumption that such a responsibility has been assumed. The Law Commission have recommended the removal of the assumption of responsibility as a threshold condition, which they say should ‘never have become part of the qualifying requirements’.156 The Commission proposed that instead ‘the question of whether or not there was such an assumption of responsibility, and its extent, should be taken into account as a factor in assessing whether there was a failure to make reasonable provision for the applicant and considering the exercise of the court’s powers’.157 5.3.2.4  Conclusion on Dependency and Carers in England and Wales Bridge hailed Bouette as ‘good news for voluntary carers of disabled people of whatever age’.158 The result reached in that case is indeed laudable. Nonetheless, it should be borne in mind that the facts of the case were distinctive: the significant source of external funding made it relatively straightforward to show that the daughter was in fact maintaining the mother even though the daughter was the vulnerable party. The reality is that in many care situations, the carer cannot claim to have been maintained and the care recipient is more likely to bring a successful claim under section 1(1)(e) against her carer than vice versa.   Jelley v Iliffe (n 120) 137.   See, eg Law Commission, Second Report on Family Property: Family Provision on Death (n 129) [87]. 154   G Douglas, ‘Case Reports: Family Provision’ [2000] Family Law 316, 317. 155   Baynes v Hedger (CA) (n 119), criticised by Ross, ‘Inheritance Act Claims by Dependants’ (n 116). 156   Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (n 116) [6.17]. 157   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.59]. 158  S Bridge, ‘For Love or Money? Dependent Carers and Family Provision’ [2000] Cambridge Law Journal 248. 152 153

160  Family Provision Ironically, a carer is also more likely to succeed if the deceased has already rewarded him in monetary form while both parties were alive than if she did not, provided that ‘reward’ amounts to maintenance. It may be thought that such maintenance makes it more likely that the relationship will be considered contractual (akin to that between a ‘care worker’ and a care recipient) and thus outside the scope of the Act. Surprisingly, however, the mere existence of a contract will not necessarily require a finding that ‘full valuable consideration’ has been provided. Such consideration is not provided, for example, if rent below market value has been paid by the applicant to the deceased.159 The fundamental problem in the absence of the reforms proposed by the Law Commission is that, as Kerridge puts it, ‘the more an applicant has done for the deceased, the harder it might be to make a claim as a dependant’.160 This is true even without the expansive interpretation of ‘consideration’. Gareth Miller points out that the difficulty for carers was already recognised when the 1975 Act was introduced.161 As the Bill passed through Committee stage, it was accepted that the interests of a carer who was not strictly a dependant of the deceased would not be protected.162 This state of affairs was justified on the basis that it would ‘extend the whole concept of the Bill beyond the granting of provision for dependants’.163 A fundamental change in the philosophy behind the Act may therefore be necessary if the carer is to be specifically accommodated.164 The consequences of the decision to avoid moving beyond dependency were demonstrated in Plumley. The deceased’s estate attempted to defeat the claim by arguing that the applicant’s care for the deceased had gone above and beyond the call of duty because she had ‘conferred exceptional benefits on the deceased by waiting on him “hand and foot” and doing everything for him’.165 The argument failed in that instance, but the difficulty was illustrated again, fatally for the purposes of the claim, in Jennings v Rice.166 Jennings is one of a number of cases involving both proprietary estoppel and the 1975 Act.167 The swiftness with which Mr Jennings’ claim under the Act was dismissed highlights the significant gap in the utility of the Act for the ‘pure’ carer. When raising the alternate claims, the appli  Rees v Newbery [1998] 1 FLR 1041 (Ch).  Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8.79]. 161   G Miller, ‘Dependants, Cohabitants and Family Provision’ [2000] Private Client Business 305. 162   HC Deb 20 October 1975, vol 898, col 177. 163  ibid. 164   See section 5.3.5 below. 165   Plumley v Bishop (n 139) 586. 166   [2001] WTLR 871 (Judge Weeks QC). The argument was not pursued on appeal: [2002] EWCA Civ 159, [2003] 1 FCR 501. 167   The importance of hearing both claims together is increasingly being recognised by the courts: Cardinal, ‘In Practice – Inheritance or Estoppel – How the Cohabitant Succeeded’ (n 115). An example of a combined claim in Australia is Weeks v Hrubala [2008] NSWSC 162. 159 160



5.3  Eligibility under Inheritance Act 1975 161

cant is placed in an impossible position, since he is forced to make directly inconsistent submissions. One moment, he must realistically show that his actions went beyond what might be expected given his relationship to the deceased in order to show sufficient detriment for estoppel. The next, he is required to show that his contributions were not sufficiently substantial to constitute consideration for the maintenance provided to him by the deceased under the 1975 Act. It is therefore difficult to disagree with Kerridge’s conclusion that: ‘It does seem odd that an applicant who claims to have been a dependant will benefit from demonstrating that he or she was slothful and uncaring’.168 Butler Sloss LJ expressed severe doubt in Plumley that the converse situation, that is that an applicant could be disadvantaged by providing exceptional care, was intended by Parliament.169 Unless the carer can point to significant contributions towards his daily living made by the care recipient, however, that can be the result achieved by the Act. This possibility has rightly been criticised by the Law Commission and their consultees.170 Before moving on to consider whether the ‘eligible cohabitant’ under the 1975 Act is more useful for the ‘pure’ carer, it is interesting to compare the understanding of ‘dependency’ in England with that in New South Wales. 5.3.2.5  Dependants in New South Wales In New South Wales dependants must be members of the deceased’s household unless they are grandchildren of the deceased.171 In this respect, English law is more liberal since it does not require an applicant to have lived with the deceased. In the English case of Malone v Harrison, for example, the applicant ‘mistress’ of the deceased successfully demonstrated that she was a dependant because the deceased had set her up in a flat of her own and paid her living expenses.172 On the other hand, the dependency does not have to exist at the date of death in New South Wales. Only full or partial dependency ‘at any particular time’ need be proved.173 In Blackley v Proctor, a carer did manage to secure provision in New South Wales because he and his wife had been provided with free accommodation in return for their assistance.174 The application was said to be ‘warranted’, a requirement for dependants in New South Wales, because the applicant  Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8.79].   Plumley v Bishop (n 139) 587–88.   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.72]. 171   Succession Act 2006 (NSW), s 57(e). 172   Malone v Harrison [1979] 1 WLR 1353 (Fam). 173   Succession Act 2006 (NSW) s 57(e). 174   Blackley v Proctor [2001] NSWSC 537. 168 169 170

162  Family Provision ‘did more than one would normally expect from a boarder or a lodger’.175 Therefore, once sufficient maintenance was shown, the care provided in fact assisted the application. This is something of a contrast with the position in England. As discussed in section 5.3.4, however, a ‘pure’ carer need no longer bring a claim as a ‘dependant’ in New South Wales. 5.3.3  ‘Pure’ Carers as Eligible Cohabitants In England and Wales it is possible that a ‘pure’ carer could bring a claim under section 1(1)(ba) of the 1975 Act, which was inserted in 1995.176 In order to do so, he will have to show that for two years immediately before the care recipient’s death, he lived in the same household as the care recipient as if he were her spouse, notwithstanding that the two were not married.177 A civil partnership analogy is also included for equivalent same-sex couples.178 As illustrated during the discussion on proprietary estoppel in chapter two, the categories of carer and cohabitant often overlap considerably. The focus in this subsection is on the importance of a conjugal relationship to eligibility under the Act, since this is obviously crucial to the success or failure of a ‘pure’ carer’s claim in this category. 5.3.3.1  Living as Spouses or Civil Partners and the Importance of a Sexual Relationship According to Catherine Williams, Gary Potter and Gillian Douglas, the courts have ‘tried to be generous’ when interpreting the ‘living’ requirements.179 These requirements are contained in sections 1(1A) (for those living as spouses) and 1(1B) (for those living as civil partners) of the 1975 Act. Indeed, there is a chance that the interpretation given by Neuberger J in Re Watson (decd) may assist the ‘pure’ carer.180 In that case, the judge was content to find that an elderly couple were living together as husband and wife for the purposes of the Act even though they did not share a bedroom or have a sexual relationship during the time in which they lived together. Neuberger J was of the view that it was ‘not unusual’ for a happily married couple of the ages of the parties when they began to cohabit   ibid [27] (Acting Master Berecry).   Law Reform (Succession) Act 1995.   Inheritance (Provision for Family and Dependants) Act 1975, s 1(1A). 178   Inheritance (Provision for Family and Dependants) Act 1975, s 1(1B). 179   C Williams, G Potter and G Douglas, ‘Cohabitation and Intestacy: Public Opinion and Law Reform’ (2008) 20 Child and Family Law Quarterly 499, 504. 180   Re Watson (decd) [1999] 1 FLR 878 (Ch) 884. 175 176 177



5.3  Eligibility under Inheritance Act 1975 163

to sleep in separate bedrooms and abstain from sexual relations.181 This finding suggests that sexual relationship is not a necessary criterion for the purposes of section 1(1A). The judge also emphasised that the deceased and the applicant in Re Watson shared a common domestic life for over a decade. Nevertheless, while Neuberger J was conscious of the fact that married couples ‘can vary from each other in multifarious ways’, he rejected the suggestion that it was sufficient to show that the deceased and the applicant had a relationship that could potentially be enjoyed by a husband and wife.182 That, he said, would risk including almost any relationship between a man and a woman. This argument now has added significance since the 1975 Act has been amended to include same-sex couples, so that the approach rejected by the judge could potentially include a relationship between any two people. In Re Watson, moreover, Neuberger J appeared to be influenced by the fact that the parties had enjoyed a sexual relationship at a much earlier stage in their lives, and were prevented from living together at that point by obligations owed towards their respective parents. The appropriate question for the court was ‘whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife’, albeit bearing in mind the varied nature of marital relationships.183 According to Neuberger J, both ‘internal’ and ‘external’ elements are relevant when considering the nature of the relationship and, if anything, internal elements are more important.184 On the other hand, in Baynes v Hedger, Lewison J concluded that it was ‘not possible to establish that two persons have lived together as civil partners unless their relationship as a couple is an acknowledged one’.185 He therefore decided that two elderly women had not lived together as civil partners because, unsurprisingly given the era in which they lived, their relationship as a couple was not openly acknowledged.186 Lewison J’s remarks in Baynes were obiter, since he had already decided that the deceased and the applicant did not share a household. Nevertheless, the emphasis on public coupledom renders it more difficult for a carer to bring himself within section 1(1A), which may   ibid 884.   ibid 883. 183   ibid 883. 184   ibid 883. 185   Baynes v Hedger (Ch) (n 118) [150]. For criticism, see S Chaudhry and J Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010) 424; D Monk, ‘Sexuality and Succession Law: Beyond Formal Equality’ (2011) 19 Feminist Legal Studies 231, 241–43. 186   The New South Wales Law Reform Commission recommended that the equivalent legislation there should require the court to consider ‘possible reasons for parties not holding themselves out publicly as a couple, arising from the social context in which their relationship existed’ to address this difficulty: New South Wales Law Reform Commission, Relationships (Report No 113, 2006) 49. 181 182

164  Family Provision well be fatal to his claim.187 This is unfortunate since, following arguments such as those of Fineman,188 a carer could be owed more of an obligation, and be more in need of maintenance, than a conjugal cohabitant. In their Consultation Paper on intestacy and family provision, the Law Commission proposed a test of whether the deceased and the applicant were ‘living as a couple in a joint household’.189 While this would have avoided an analogy with marriage or civil partnership, the Commission did not intend for it to have any effect on the range of eligibility190 and coupledom would apparently still have been crucial. Nevertheless, the proposal was ultimately dropped because of fears that it could lead to speculation about whether the range of entitlement had changed.191 In New South Wales, a non-exhaustive checklist of factors is used to determine whether the applicant and the deceased had a ‘relationship as a couple’ and were therefore in a recognised de facto relationship,192 if they had not registered a de facto partnership.193 In line with the judicially developed principles in England, these factors include ‘whether or not a sexual relationship exists’194 and ‘the reputation and public aspects of the relationship’.195 In New Zealand, a sexual relationship is neither necessary nor sufficient to bring a partner within the definition of a de facto relationship for the purposes of property division. In Scragg v Scott,196 it was confirmed that two people who never lived together but regarded themselves as a ‘close and devoted couple’197 could be within the property division legislation.198 Peart has highlighted the difficulty caused by this uncertainty.199 Again, however, the focus on coupledom (whether or not reinforced by sexual intimacy) could be fatal for ‘pure’ carers even on the analysis in Scragg, and in Chapman v HP the judge characterised the dispute as concerning whether a claimant was in a de facto relationship with the deceased or ‘just his caregiver’.200   cf Lindop v Agus (n 135).   See section 1.2.2.1 above.   Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (n 116) [4.112]. 190   ibid [4.112]. 191   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [8.56]. 192   Interpretation Act 1987 (NSW), s 21C , referenced in a note in Succession Act 2006 (NSW), s 57. 193   Interpretation Act 1987 (NSW), s 21C(1)(a). 194   Interpretation Act 1987 (NSW), s 21C(3)(c). 195   Interpretation Act 1987 (NSW), s 21C(3)(i). 196   Scragg v Scott [2006] NZFLR 1076, [2006] FRNZ 942. 197   This was said of the couple in Horsfield v Giltrap [2001] NZCA 179, (2001) 20 FRNZ 404 [7] (Blanchard J). 198   Scragg v Scott (n 196) [37] (judgment of the court), applying the Property (Relationships) Act 1976 (NZ) as amended. 199   N Peart, ‘De Facto Relationships (or Maybe Not) in New Zealand’ [2008] International Family Law 130. 200   Chapman v HP [2009] NZHC 732, [2010] NZFLR 855 [248] (Mallon J). 187 188 189



5.3  Eligibility under Inheritance Act 1975 165

5.3.3.2  Living ‘In the Same Household’ In the unlikely event that he is able to surmount the requirement that he lived as the care recipient’s spouse or civil partner, a ‘pure’ carer must also show that he lived in the same household as the deceased in order to be eligible as a cohabitant under the English 1975 Act. When considering what it meant to live in the same household, Judge Norris QC said in Churchill v Roach: It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources.201

Many of these factors, none of which were regarded as conclusive, could easily be present in a care scenario, particularly if the care relationship lasts for a significant period of time. Judge Norris QC did not even consider it necessary for the parties to live within a single property.202 It was the presence of ‘two separate establishments with two separate domestic economies’ that was fatal to the claim in Churchill.203 Such is the generosity of Judge Norris QC’s approach that James Piggott and Margaret Windram suggest the definition of ‘cohabitant’ is now wider than Parliament intended.204 It is worth noting that, in New South Wales, a de facto couple are not required to live in the same household on the face of the statute. While there is a reference to living ‘together’205 and the court should consider ‘the nature and extent of [the couple’s] common residence’,206 this factor, in common with the others, is not a necessary condition.207 That said, there is something of an assumption that common residence is required, and in Mao v Peddley, Master McLaughlin found it ‘difficult to envisage the existence of a de facto relationship . . . where the parties do not actually, throughout the period of the relationship, reside together on a full-time basis’.208 The ‘household’ requirement has therefore been interpreted in a way that could be beneficial to many carers in English law. Nevertheless, the apparent emphasis on a sexual relationship means that the ‘household’ question will often be rendered irrelevant. The final requirement for the   Churchill v Roach [2002] EWHC 3230 (Ch), [2004] 2 FLR 989, 1004.   For a similar view from New South Wales, see Przewoznik v Scott [2005] NSWSC 74. 203   Churchill v Roach (n 201) 1005. 204   J Piggott and M Windram, ‘Cohabitants and the Inheritance Act – Extending the Boundaries’ [2004] Family Law 820. 205   Interpretation Act 1987 (NSW), s 21C(2)(a). 206   Interpretation Act 1987 (NSW), s 21C(3)(b). 207   Interpretation Act 1987 (NSW), s 21C(3). 208   Mao v Peddley [2001] NSWSC 254 [58]. 201 202

166  Family Provision ‘cohabitant’ to satisfy, the minimum duration, is considered in the next subsection. 5.3.3.3  The Minimum Duration Under the 1975 Act, the applicant must have lived with the deceased as her spouse or civil partner for a period of two years ending at the time of the death. In New South Wales, there is no minimum duration requirement for the purposes of family provision, although the relationship must be subsisting at the time of the death.209 In spite of the statutory requirement in England, the courts have been relatively flexible towards applicants attempting to fulfil this requirement. In Re Watson, for example, Neuberger J considered it irrelevant that the deceased had to go into hospital three weeks before he died. It was said to be ‘contrary to the whole purpose and thrust of the section, if someone, who otherwise fell within it, was wholly deprived of its benefit because the deceased had been forced to spend time in hospital immediately prior to his death’.210 In Gully v Dix,211 the Court of Appeal was particularly sympathetic to a conjugal cohabitant who was also a carer for the deceased. The deceased’s alcoholism caused several short separations between the parties. A final separation occurred when the deceased threatened to kill himself in front of the applicant using a knife. The applicant left and went to stay with her daughter. The deceased left telephone messages with the daughter begging the applicant to return. These were not passed on to the applicant and she did not return to live with the deceased, who was found dead three months after the applicant had left their home. Wall LJ held that if, as in this case, ‘the interruption is transitory, serving as a pause for reflection about the future of a relationship going through difficult times but still recognised to be subsisting’, the duration requirement could still be satisfied.212 It was the ‘settled situation’ between the parties that was relevant.213 It may be difficult to apply criteria regarding the breakdown of a relationship to a ‘pure’ carer, since they imply a paradigm of a sexual relationship between a cohabiting couple.214 This is demonstrated by the fact that in Gully Wall LJ drew analogies with cases involving separation between husband and wife from various legal contexts.215 In spite of the flexible

  Succession Act 2006 (NSW), s 57(b).   Re Watson (decd) (n 180) 883.   Gully v Dix (n 120). 212   ibid [24]. 213   ibid [16]. 214   cf Murphy v Rayner [2011] EWHC 1 (Ch). 215   Gully v Dix (n 120) [20]–[24]. 209 210 211



5.3  Eligibility under Inheritance Act 1975 167

approach, then, perhaps the minimum duration requirement simply reinforces the suggestion that ‘pure’ carers do not fall within section 1(1)(ba) at all.216 5.3.3.4  Conclusion on Carers as Cohabitants Piggott and Windram take a pessimistic view as to whether a ‘pure’ carer can be eligible under the 1975 Act. Relying on Jelley, they claim that ‘nonromantic cohabitants, such as live-in carers, would not be able to rely on the Act, unless it can be shown that the services are provided by reason of love and mutual affection’.217 This indicates an argument based on dependency, implying that they do not think ‘pure’ carers could ever satisfy the requirements of sections 1(1A) or 1(1B). Cases are heavily fact-specific, and it is not absolutely impossible that a care relationship could have sufficient intimacy, domesticity and mutuality to come within the subsection without a sexual tie. Admittedly, however, ‘pure’ carers would face an uphill struggle. Most of them remain outside the 1975 Act, and those who do qualify must face the maintenance requirement discussed in section 5.4 below. The following subsections consider a possible way forward for English law, namely the adoption of a distinct category to provide for carers. 5.3.4  An Example of a ‘Carer’ Category: New South Wales A number of Australian states and territories have specific categories into which carers could fall.218 The New South Wales concept of a ‘close personal relationship’, introduced in 1999219 and now governed by the Succession Act 2006,220 would provide something of a solution to the problems currently faced by carers under the English 1975 Act. The intention behind the 1999 amendments, according to the New South Wales Law Reform Commission, was ‘to provide an avenue for redress for people who suffer some detriment (and are not compensated for it) because of the care and support they provide to another, be it an elderly or ailing parent or friend or neighbour, for no fee or reward’.221 This appears to be 216   The Law Commission recommends the abolition of the minimum duration requirement for cohabitants with children (Law Commission, Intestacy and Family Provision Claims on Death (n 18) [8.153]). Such a reform is unlikely to affect the ‘pure’ carer. 217   Piggott and Windram, ‘Cohabitants and the Inheritance Act – Extending the Boundaries’ (n 204) 821. 218   See National Committee on Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission Report No 58, Brisbane, 2004) 7 fn 42 for discussion. 219   Property (Relationships) Legislation Amendment Act 1999 (NSW). 220   cf Family Provision Act 1982 (NSW), s 6(1)(a)(ii). 221   New South Wales Law Reform Commission, Relationships (n 186) [3.21].

168  Family Provision something of a departure from the emphasis still placed on dependency when explaining the rationale of the English Act. It is apparently backward- rather than forward-looking, at least as regards eligibility,222 which means that a ‘pure’ carer is likely to fall within the parameters of the category based on what he has done for the deceased in the past. Nevertheless, in Morwood v Dalgleish, having already found that the parties were in a de facto relationship, MacCready AsJ expressed doubts about whether ‘the purpose of the relationship was to give personal care and attention to the deceased’.223 Any requirement to consider the purpose of the relationship is undesirable, since the nature of relationships can change gradually over time. The substantive discussion of the New South Wales Act begins by examining the structure of the legislation, including reforms that came into force in 2009. 5.3.4.1  The New South Wales Legislation In its recommendations on family provision, the National Committee for Uniform Succession Laws did not recommend that people in ‘close personal relationships’ should automatically be eligible for discretionary relief under the Australian family provision legislation.224 Even when enacting legislation in response to the recommendations in 2008, however,225 the New South Wales authorities retained among the potential class of applicants the parties to a ‘close personal relationship’. Such a relationship exists ‘between two adult persons [who are not in a marriage or de facto relationship with each other], whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care’.226 A claim is precluded, however, if the domestic support or personal care is provided ‘for fee or reward’ or ‘on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation)’.227 This corresponds broadly to the distinction between a ‘carer’ and a ‘care worker’ adopted by the UK government,228 although the term ‘reward’ may imply something wider   cf section 5.4.10 below.   Morwood v Dalgleish [2007] NSWSC 32 [78].   National Committee on Uniform Succession Laws, ‘Family Provision: Supplementary Report to the Standing Committee of Attorneys General’ 7 fn 42. 225   Succession Amendment (Family Provision) Act 2008 (NSW), amending the Succession Act 2006 (NSW) and repealing the Family Provision Act 1982 (NSW). 226   Succession Act 2006 (NSW), s 3(3) (as amended). 227   Property (Relationships) Act 1984 (NSW), s 5(2). A carer’s pension is not a relevant fee or reward: Woodland v Rodriguez (n 65). 228   Directgov, ‘Top Tips for Carers’ www.direct.gov.uk/en/CaringForSomeone/ CaringAndSupportServices/DG_10016779. 222 223 224



5.3  Eligibility under Inheritance Act 1975 169

than consideration under a formal contract of employment.229 The ‘close personal relationship’ must exist at the time of death. One new restriction in the amended Succession Act 2006 is that applicants who invoke the ‘close personal relationship’ provision are not eligible as of right, and must convince the court that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’.230 This requirement previously applied only to former spouses, dependants and dependent grandchildren of the deceased.231 In relation to those categories, the courts required ‘good and sufficient grounds for the application’.232 A significant amount of care should constitute a factor warranting the application, not least because it has been allowed to do so in applications by dependants.233 Interestingly, the court is permitted to have regard to the same list of factors when determining whether an applicant is an eligible person as when it is exercising its discretion on determining the relief to be granted.234 This discretionary approach bears some resemblance to the Victorian idea of dispensing with fixed categories of applicant. The ‘close personal relationship’ is comprised of a number of elements, and these are now considered. 5.3.4.2  Living Together Notwithstanding the fact that the deceased and the applicant must have been ‘living together’, in Hayes v Marquis the Court of Appeal of New South Wales has accepted that the parties to a close personal relationship do not have to do so on a full-time basis.235 McColl JA suggested that the common residence requirement might be ‘somewhat more attenuated’ for the purposes of a close personal relationship than for a de facto relationship between cohabitants.236 This is significant since, as discussed in section 5.3.3.2 above, it is not strictly necessary even for de facto partners to share a household to qualify for provision in New South Wales. McColl JA’s approach would appear to accord with MacCready AsJ’s view, expressed in several other cases, that ‘a sharing of food or eating arrangements together’ may be unnecessary to fulfil the criteria for a

229   cf Barlevy v Nadolski [2011] NSWSC 129, where the context of the claimant’s relationship with the deceased seemingly meant that payments made to her (in a similar manner to other paid carers) were not to be treated as a ‘fee or reward’ for the purpose of the Act. 230   Succession Act 2006 (NSW), s 59(1)(b). 231   Family Provision Act 1982 (NSW), s 9(1). 232   O’Shaughnessy v Mantle (1986) 7 NSWLR 142, 146 (Young J). 233   Blackley v Proctor (n 174); Barlevy v Nadolski [2011] NSWSC 129 [199] (Slattery J). 234   Succession Act 2006 (NSW), s 60(1)(a). 235   Hayes v Marquis [2008] NSWCA 10, [2008] ALMD 5421 [78]. 236  ibid [79].

170  Family Provision ‘close personal relationship’.237 That said, in Hayes Einstein J considered it important that the parties regard the place they live together as ‘their home’, even if family or work commitments sometimes required them to leave it.238 Moreover, the ‘domestic support’ requirement was said to underline the notion of a shared household.239 The ‘living together’ requirement, even if not strictly applied, renders the ‘close personal relationship’ category less useful for some types of carer than the ‘dependant’ category in England and Wales. Nevertheless, if a carer is not living with the care recipient (and in fact being provided with accommodation by her), he is unlikely in any event to qualify as a dependant under the English legislation. In Tasmania, family provision is not available to those in the equivalent ‘caring relationships’,240 although those who have registered their relationship are eligible to apply for inter vivos financial redistribution on the breakdown of a relationship and can inherit under intestacy laws.241 One useful feature of the Tasmanian scheme is that the parties do not have to live together in order for their relationship to qualify, and the New South Wales Law Reform Commission have recommended that this requirement should be removed for the purposes of the New South Wales legislation.242 This would be a welcome development. It could be argued that a carer who lives with the care recipient is likely to be particularly devoted, and that the chance that the relationship between the two has become interdependent is higher than if they live apart. On the other hand, the carer may have received the benefit of free accommodation if he has lived with the care recipient, and the ‘living together’ requirement can produce arbitrary results. The potential for the ‘living together’ requirement to cause injustice is illustrated by Richardson v Kidd.243 In this case, the applicant lived in a de facto relationship with the deceased for a time. After she moved out, she helped the deceased with highly personal tasks. The applicant made plans to move back to the deceased’s home during what turned out to be the weekend after the deceased died. Macready AsJ nonetheless held that she was not in a ‘close personal relationship’ with the deceased because they were not living together at the time of his death, even though care was being provided. Macready AsJ’s approach is apparently stricter than that of the English Court of Appeal in Gully v Dix, notwithstanding the requirement that the couple were living together as spouses or civil partners that   See, eg Davis v Fordham [2008] NSWSC 182 [23].   Hayes v Marquis (n 235) [166].  ibid [76] (McColl JA). 240   Relationships Act 2003 (Tas), s 5. See, generally ch 6. 241   Administration and Probate Act 1935 (Tas), s 44. 242   New South Wales Law Reform Commission, Relationships (n 186) [3.23]. 243   Richardson v Kidd [2002] NSWSC 306, [2007] ALMD 2205. 237 238 239



5.3  Eligibility under Inheritance Act 1975 171

had to be applied in Gully. In any event, the result in Richardson demonstrates that a common residence can have little bearing on the level of care provided, and that the ‘living together’ requirement is an undesirable hurdle. 5.3.4.3  Domestic Support and Personal Care In Dridi v Filmore, it was confirmed that the domestic support and personal care requirements were cumulative.244 There is, however, an inevitable overlap between the concepts. In Hayes, the phrase ‘domestic support’ was not held to ‘occasion any particular questions of ambiguity’.245 The Attorney General, in the debates leading to the passing of the 1999 reforms, opined that such support consisted of ‘attending to the household shopping, cleaning, laundry and like activities’.246 The ‘personal care’ requirement, crucial for present purposes, has been a source of greater difficulty. The Supreme Court of New South Wales originally interpreted ‘personal care’ to mean ‘assistance with mobility, personal hygiene and physical comfort’, with the result that emotional support in itself was insufficient.247 The effect of this, according to Reg Graycar and Jenni Millbank, was to turn the concept into ‘one addressing only (unpaid) live-in caregivers’.248 The Law Reform Commission proclaimed that: ‘[t]he “personal care” element is not easy to satisfy.’249 In one case, the performance of housework and the transporting of the deceased to medical appointments was not sufficient to constitute ‘personal care’.250 In the Court of Appeal case of Hayes v Marquis, however, McColl JA admitted that he had ‘difficulty with an argument that parties accepted to be in a loving sexual relationship . . . are not providing each other with personal care’.251 He admitted that there may be cases where emotional support alone would suffice. This could widen the ‘close personal relationship’ category considerably. If a sexual relationship with emotional support is sufficient in itself to constitute ‘personal care’, this removes the distinctiveness of the ‘close personal relationship’ as a category intended to provide for those who are not in a sexual relationship. At the same time, the generosity of this approach could increase the range of ‘pure’ carers who are able   Dridi v Filmore [2001] NSWSC 319 [104] (Master Macready).   Hayes v Marquis (n 235) [167] (Einstein J). 246   New South Wales Legislative Council, Parliamentary Debates, (Hansard) 13 May 1999, 228. 247   Dridi v Filmore (n 244) [108] (Master Macready). It was accepted, however, that such activities would ‘include an element of emotional support’. 248  R Graycar and J Millbank, ‘From Functional Family to Spinster Sisters: Australia’s Distinctive Path to Relationship Recognition’ (2007) 24 Washington University Journal of Law and Policy 121, 149. 249   New South Wales Law Reform Commission, Relationships (n 186) [3.10]. 250   Bogan v Macorig [2004] NSWSC 993. 251   Hayes v Marquis (n 235) [87]. 244 245

172  Family Provision to bring a claim under the Act. It was not necessary to come to a conclusion on the issue to decide the case at hand, and Macready AsJ continued to regard the sufficiency of emotional support as an open question.252 In any event, it is clear that a certain amount of domestic support and care is needed before the statute is engaged. In the opinion of McColl JA, ‘if two adults lived together fulltime and one provided domestic support and personal care to the other only once or twice a year, it would be difficult to say that a close personal relationship had been established’.253 A genuine ‘pure’ carer (with whom the discussion is presently concerned) is unlikely to have any difficulty in satisfying the ‘domestic support’ and ‘personal care’ criteria provided he can demonstrate a sufficiently shared household. Moreover, the courts have shown themselves to be willing to infer that care has taken place. In Hughes v Charlton, Macready AsJ held that in spite of doubts surrounding the evidence before him: The reality is that as the deceased became increasingly ill he inevitably became reliant on those around him. It is clear that the [applicant] was the only person around him for most of this period and as a corollary only she could provide such care.254

A close personal relationship was therefore found. The Law Reform Commission have recommended that, as is the case in Tasmania, a non-exhaustive and non-conclusive list of factors should be used to determine whether or not an applicant is in a ‘close personal relationship’.255 It remains to be seen whether the guidance provided in Hayes will negate the need for such a checklist. The Commission also recommended the establishment of a registration system for close personal relationships.256 This would be along the lines of the Tasmanian model, where registration is conclusive of the establishment of a relationship.257 The suggestion was made in spite of the apparent lack of success of the Tasmanian scheme and the difficulties of registration schemes, discussed in chapter six. 5.3.5  A ‘Carer’ Category for England and Wales? The Succession Act 2006 (taking up the mantle of the previous Family Provision Act 1982) is an important example of how family provision law can specifically address scenarios involving care in order to provide a   Marsh-Johnson v Hillcoat [2008] NSWSC 1337 [45].   Hayes v Marquis (n 235) [84]. 254   Hughes v Charlton [2008] NSWSC 467 [55]. 255   New South Wales Law Reform Commission, Relationships (n 186) [3.2.3]. 256   ibid 7. cf Relationships Register Act 2010 (NSW). 257   Relationships Act 2003 (Tas), s 14. 252 253



5.3  Eligibility under Inheritance Act 1975 173

remedy for informal carers. Nevertheless, although the category apparently prevents a gap in the legislation, the New South Wales Law Reform Commission report that few cases have been brought by people in ‘close personal relationships’ and that such claims tend to be presented as falling within another category.258 This would not, however, detract from the justice served by such a provision if it were introduced in England. This is particularly true given the problems caused by the ‘maintenance’ and ‘full valuable consideration’ points associated with dependency discussed above, and by the focus on conjugality and living in the same household in the case of cohabitants. Kerridge hints at the possible need to recognise carers specifically when he argues that a cohabitant of the deceased is in a privileged position as compared to a sibling who provides care, although he points out that such a sibling will often be provided for under the intestacy rules.259 Even in the New South Wales context, the ‘close personal relationship’ category has sometimes proved vital in cases where an applicant has been unable to bring himself within one of the other categories, and it has been said it is not possible for the same two people to be in both a de facto relationship and a ‘close personal relationship’ simultaneously.260 In Hughes v Charlton, for example, ‘the evidence point[ed] to the [applicant] being a housekeeper for the deceased’, and the applicant was therefore eligible only as a result of the ‘close personal relationship’ category.261 Admittedly, difficult definitional problems would have to be addressed, as illustrated by the New South Wales experience itself. Nevertheless, that is an inevitable feature of discretionary schemes regulating informal relationships and should not preclude an attempt at reform in England. On a more principled level, the advent of a ‘carer’ category in England could be met with the objection that it would effectively introduce almost diametrically opposite categories of applicant into the 1975 Act. This allegation is justified to an extent, since one category would be based on the fact that the applicant was dependent on the deceased, and another is effectively based on the fact that the deceased was dependent on the applicant (albeit in a different sense). Nevertheless, the New South Wales legislature was apparently content to place both categories in its Act. It is worth noting that in the case of ‘close personal relationships’ the care recipient is be equally eligible to bring a claim on the estate of the carer.262 This reflects the reality of interdependence that is often present between the parties to such relationships, and Herring points out that it can be   New South Wales Law Reform Commission, Relationships (n 186) [3.7].  Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8-79]. 260   Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 [69] (Hallen AsJ). 261   Hughes v Charlton (n 254) [47] (Macready AsJ). See also Smith v Daniels [2010] NSWSC 604. 262   See, eg Woodland v Rodriguez (n 65). 258 259

174  Family Provision difficult to determine which party is the carer and which the care recipient.263 The categories of the dependant and the party to a close personal relationship may be more consistent with each other than they first appear. Moreover, given the repugnance expressed by some commentators about the idea that a slothful individual is more likely to succeed under the 1975 Act than an industrious one, the introduction of an opposing category could nevertheless be a positive development. A ‘carer’ category could also shift the emphasis away from maintenance and future need. Since there is not always a direct connection between work done in the past and the present need for maintenance, the new category could be more about remuneration. This, again, echoes the emphasis on desert present in Fineman’s writings. If the sole aim of statutory family provision is to allow the continuation of maintenance, a new category is not necessarily consistent with it. On the other hand, if the aim of such statutes could be reformulated as the encouragement and fostering of domestic support in general, as argued in section 5.2, a ‘carer’ category would simply extend this aim to include the provision of such support before death. Unfortunately, the English Law Commission specifically rejected the inclusion of carers as a specific category of family provision applicant in their recent report on intestacy and family provision. They argue that outside cases of carers who were maintained by the deceased (who would be able to apply under section 1(1)(e)), there are difficulties in ‘identifying precisely who was to benefit and why’.264 Examples of problems given by the Commission are the level of care required (and how much entitlement it would bring), and the correct approach where another family member or friend was prevented from caring by the applicant. These are significant issues, but it is not clear that the relevant amount of care is any more difficult a question than the extent to which the deceased maintained an applicant or treated him as a child of the family (already crucial aspects of English family provision law). Moreover, the quantum of provision is separated from eligibility throughout the rest of the Act, and it is surprising that the Law Commission conflated the two matters as regards carers. Given that New South Wales and other jurisdictions have found methods of including carers within family provision, it is regrettable that the Commission did not explicitly adopt a comparative approach when swiftly rejecting the specific inclusion of carers. Even if a ‘carer’ category were introduced in England and Wales, the link with a need for future maintenance would probably remain. Indeed, it will 263   J Herring, ‘Where are the Carers in Healthcare Law and Ethics?’ (2007) 27 Legal Studies 51 72–73. cf Wells, ‘Testamentary Promises: A New Approach’ (PhD thesis, King’s College London 2007) 319, who argues that ‘the provision of caring services will frequently be a onesided arrangement’. 264   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.92].



5.4  The Quantification of Relief 175

be seen in the next section that maintenance is often at the heart of determin­ ations even in jurisdictions where the carer is explicitly recognised. 5.4  THE RELEVANCE OF CARE PROVIDED TO THE QUANTIFICATION OF RELIEF

The second key question relating to family provision, namely the prin­ ciples governing the award of relief, is investigated in this section. The ambit of the enquiry is broadened to include informal carers who automatically satisfy the eligibility criteria by virtue of their familial relationship with the deceased (but will not necessarily be successful in obtaining discretionary provision). Section 5.4.1 discusses the general principles governing relief under the 1975 Act and similar statutes. The intestacy rules in England and elsewhere are outlined in section 5.4.2, since these are the default rules that a family provision statute is seeking to disapply. Provision for carers by virtue of bona vacantia in England and Wales is considered in section 5.4.3. Section 5.4.4 sets out the factors to be considered in all cases under the 1975 Act, before sections 5.4.5 to 5.4.9 elucidate the relevance of care to the likelihood of provision being made at all, and its quantum, in cases involving particular categories of applicant under the 1975 Act. The carer who was in a ‘close personal relationship’ with the deceased for the purposes of the New South Wales Succession Act 2006 is discussed in section 5.4.10. Section 5.3 recognised that fundamental changes in the philosophy underpinning the 1975 Act may be necessary to extend it beyond the dependant and accommodate the ‘pure’ carer. This theme continues in the present discussion. It assumes particular significance when considering relief awarded to applicants under the ‘close personal relationship’ category in New South Wales, which is ‘backward-looking’ in terms of eligibility. 5.4.1  General Principles Governing Relief Under the 1975 Act, the court has a discretion to make orders for periodical payments, the transfer of lump sums, the transfer or settlement of property and the variation of ante- or post-nuptial settlements in favour of the applicant.265 Before it can consider whether or not to exercise its discretion, the court must be satisfied that ‘the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant’.266 The question to be answered, in an 265 266

  Inheritance (Provision for Family and Dependants) Act 1975, s 2(1).   Inheritance (Provision for Family and Dependants) Act 1975, s 2(1).

176  Family Provision objective manner,267 is: ‘[w]hat testamentary provision would a reasonable man in the position of this deceased have made for the plaintiff in all the circumstances, including the matters set out in s. 3?’268 There are in fact two questions to be asked for each applicant, although these can easily overlap and do so in the present discussion. The first is whether reasonable financial provision has been made, and the second is what orders the court should make if it has not. These questions are considered for each category of applicant below. 5.4.1.1  The Problem with Maintenance The main limitation on the quantum of claims under the 1975 Act by all those who are not spouses or civil partners is the fact that ‘reasonable financial provision’ is taken to mean ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.269 In their report leading to the 1975 Act, the Law Commission stated that ‘nothing has emerged in the course of our consultations to suggest that in the case of persons other than the surviving spouse the function of family provision legislation should be extended beyond making reasonable provision for their maintenance’.270 The Commission subsequently recommended that the ‘maintenance limitation’ be removed for eligible cohabitants,271 but ultimately concluded that this was unworkable in the absence of inter vivos remedies for cohabitants that could be employed in the same manner as the divorce analogy.272 It is questionable whether a focus on maintenance can be sustained in modern times, particularly if a move from need to desert, is deemed to be acceptable, as discussed in the introduction to the book. This could be analogised with the move away from ‘reasonable requirements’ and towards a ‘yardstick’ of equal division of assets in the context of ancillary relief on divorce.273 The shift was said to be necessitated by a desire to avoid discrimination against those whose sole contribution to the matrimonial relationship was in the domestic sphere. Many carers with familial or non-familial ties to the deceased will be in a similar position, although their cases are not fully analogous to that of the homemaking spouse since some care recipients are unlikely to acquire significant amounts of prop  Re Coventry (decd) (n 1).   Harrington v Gill [1983] 4 FLR 265 (CA) 271 (Dunn LJ). 269   Inheritance (Provision for Family and Dependants) Act 1975, s 1(2)(b). 270   Law Commission, Second Report on Family Property: Family Provision on Death (n 129) [24] (citations omitted). 271   Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (n 116) [4.134]. 272   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [8.159]–[8.165]. 273   See especially White v White [2001] AC 596, Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 discussed in section 5.4.5.1 below. 267 268



5.4  The Quantification of Relief 177

erty through endeavours outside of the domestic sphere during the course of a caring relationship. 5.4.1.2  The Meaning of ‘Maintenance’ The term ‘maintenance’ was defined by Browne-Wilkinson J in Re Dennis (decd) as encompassing ‘payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him’.274 It seems that there should be an element of recurrence and continuity similar to other sources of income.275 Peart and Borkowski have said that this is an ‘unduly narrow’ interpretation, which ‘falls well short’ of the emphasis on a fair distribution of assets present in the New Zealand model.276 In New Zealand, the statutory language is that of ‘proper maintenance and support’,277 which has facilitated a broader approach. In Australia, the terminology is generally that of ‘adequate’ and ‘proper’ maintenance.278 In New South Wales, for example, the court must determine whether, at the time of the application ‘adequate provision for the proper maintenance, education or advancement in life’ of the applicant has been made by the operation of the will or the intestacy rules.279 On the other hand, in spite of these differences, John de Groot and Bruce Nickel claim that the courts adopt a similar approach whether the terminology is that of ‘adequate’, ‘proper’ or ‘reasonable’ provision.280 In any event, much emphasis is placed on the ‘needs’ of the applicant. This is consistent with Stephenson LJ’s contention that the 1975 Act is designed to ‘remedy, wherever reasonably possible, the injustice of one, who has been put by a deceased person in a position of dependency upon him, being deprived of any financial support, either by accident or by design of the deceased, after his death’.281 5.4.1.3  Carers and Need As discussed above, the focus on dependency can be problematic for the carer. Many carers have needs caused by the opportunity costs of caring, not least because of the impact that care can have upon carers’ health,282 and the desire to compensate for and recognise the contribution of the carer will   Re Dennis (decd) [1981] 2 All ER 140 (Ch) 145.   ibid 145. 276   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 335. 277   Family Protection Act 1955 (NZ), s 4(1). 278   de Groot and Nickel, Family Provision in Australia (n 2) [2.2]. 279   Succession Act 2006 (NSW), s 59(1)(c). 280   de Groot and Nickel, Family Provision in Australia (n 2) [2.2]. 281   Jelley v Iliffe (n 120) 137–38. 282   See the material cited in Herring, Older People in Law and Society (n 13) 99–100. 274 275

178  Family Provision have a strong relationship with that fact. Indeed, the relationship between principles based on compensation and those based on need has been recognised in the context of ancillary relief on divorce. As Joanna Miles points out: ‘Need and compensation will often be coterminous: the applicant’s need is a symptom of the fact that . . . she forewent earning capacity in order to contribute to the welfare of the family through caring for home and children.’283 This reasoning could equally apply to carers for adults. On the other hand, the very nature of the applicant’s status as a carer means that he was addressing the needs of the deceased, and might not have any future needs of his own. Of course, the justification for providing for a carer is greater when a carer has such needs, but it is question­ able whether ‘need’, or even a loss worthy of compensation, should be a necessary condition for a carer to receive something out of the care reci­ pient’s estate. This argument will be a recurring theme throughout this section. The next subsection, however, outlines the intestacy rules that form the default position in England where the deceased leaves no will or leaves a will that disposes of her estate only partially. 5.4.2  An Outline of the English Intestacy Rules Before discussing the discretionary scheme under the 1975 Act, it is necessary to give a brief account of the English law on intestacy.284 Where a care recipient dies wholly or partially intestate, these rules represent the default position that is varied by a successful claim under the Act. Intestacy can arise through a failure to make a valid will, a failure to dispose entirely of one’s property by will or the automatic revocation of a will due to a subsequent marriage or civil partnership.285 Where the deceased does leave a will, this inevitably has some influence on the result of an application since the question is whether that will makes reasonable financial provision. As we have seen, however, the courts have insisted that the standard of provision is an objective one. This reduces the influence that the wishes expressed in a will are likely to have. Where an intestate leaves a spouse and issue (including remote issue), the spouse takes all personal chattels, a large statutory legacy of £250,000286 and a life interest287 in half of the balance of the estate. The remainder is 283   J Miles, ‘Charman v Charman (No 4) – Making Sense of Need, Compensation and Equal Sharing after Miller/McFarlane’ (2008) 20 Child and Family Law Quarterly 378, 398. 284   The rules are contained in the Administration of Estates Act 1925, s 46. 285   Wills Act 1837, s 18B. 286   See E Walsh, ‘Newsline Extra: Will Benefits for Spouses and Civil Partners’ [2008] Family Law 1062 for details of reforms to the statutory legacy introduced by the Family Provision (Intestate Succession) Order 2009, SI 2009/135. 287   cf Law Commission, Intestacy and Family Provision Claims on Death (n 18) [2.62], recommending that a spouse should simply take half the balance of the estate absolutely.



5.4  The Quantification of Relief 179

held on statutory trust for the issue until they reach the age of 18. Where there is a spouse but no issue, the statutory legacy increases to £450,000 and the other half of the remainder of the estate is given to the intestate’s parents or, if they have pre-deceased her, the intestate’s brothers and sisters.288 If there are no parents, brothers or sisters living, the whole estate passes to the spouse. Where the intestate leaves no spouse, the issue take the whole estate on statutory trust. If there are no issue and the deceased does not leave a spouse, the estate is taken in order by parents, siblings, grandparents, uncles and aunts. The intestacy rules in New South Wales include a de facto relationship within the definition of ‘spouse’.289 More significantly for present purposes, parties to registered ‘caring relationships’ are provided for within the Tasmanian intestacy rules.290 Predictably given the absence of an equivalent registration system in England and Wales, the English Law Commission concluded that there was ‘clearly no case for inclusion of carers in the intestacy rules’.291 They did so on the basis that the rules have to operate ‘without any evaluation by the administrators of desert or contribution by beneficiaries’.292 It is interesting, however, that they were content to propose that conjugal cohabitants be included in the rules in spite of the equally informal nature of cohabiting relationships. The English intestacy provisions are comparatively generous to the surviving spouse or civil partner, and applicants under the 1975 Act are often seeking a share of the estate to which the spouse would otherwise be entitled. This is contrary to the interests of those carers who are not spouses or civil partners of their respective care recipients, since non-­ caring relatives would be placed in a privileged position. The next subsection, however, shows that there is some scope for the recognition of care in cases of intestacy, albeit in very limited circumstances. 5.4.3  Carers and Bona Vacantia If a deceased person does not dispose of his entire estate by will and leaves no relatives falling within the intestacy rules, the undistributed part of the estate passes to the Crown as bona vacantia.293 In these relatively 288   cf ibid [2.25], recommending that the whole estate should pass to the spouse where there are no children. 289   Succession Act 2006 (NSW), ss 104–105. cf the English Law Commission’s proposals: Law Commission, Intestacy and Family Provision Claims on Death (n 18) [8.14]–[8130]. 290   Administration and Probate Act 1935 (Tas) s 44(9)(b). 291   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.91]. 292   ibid [6.91]. 293   Administration of Estates Act 1925, s 46(1)(vi). Minor exceptions apply to those who die in Lancaster or Cornwall: see, eg Law Commission, Intestacy and Family Provision Claims on Death (n 18) [1.56].

180  Family Provision rare situations,294 the Treasury Solicitor has a discretion to provide for dependants and others for whom the deceased might reasonably have been expected to make provision.295 It is through this mechanism that care is seemingly recognised in spite of the rigid rules of intestacy. According to guidance published by the Treasury Solicitor,296 it is possible to make a grant on the basis of gratuitous ‘services and kindness rendered’ provided by an applicant for whom the deceased did not make provision.297 Such a grant is characterised as a way to ‘discharge the deceased’s moral obligation’.298 The service provided need not comprise something for which the deceased might reasonably be expected to pay, provided the service was ‘of real help and value’299 and substantial. The guidance reports that grants have been made to recognise ‘washing, cleaning, cooking, shopping [and] nursing care’.300 More generally, the Treasury Solicitor has previously made provision where ‘[t]he applicant and the deceased made their home together as [a] way of enjoying friendship and support without an intimate physical relationship’.301 Conversely, blood and familial relationships (to the extent that bona vacantia is relevant to such relationships), friendship, and conversations in which the deceased indicated an intention to make provision, are often insufficient in themselves to justify a grant.302 Since care is recognised in the context of bona vacantia, such that the carer is deemed to be a person for whom the deceased might reasonably be expected to have made provision, it is arguable that care should similarly be considered within the law of family provision. The following subsections seek to determine whether such consideration occurs. 5.4.4  Relevant Considerations in all Applications under the 1975 Act According to section 3(1) of the 1975 Act, when exercising its discretion to make provision out of the estate, the court should ‘have regard’ to the following factors: 294   Only around 2,000 bona vacantia cases (consisting of estates with a net balance of at least £500) are referred to the Treasury Solicitor’s Estates Group each year: Treasury Solicitor Bona Vacantia Division, ‘Estates’ www.bonavacantia.gov.uk/output/estates.aspx. 295   See, generally www.bonavacantia.gov.uk/. 296  The Treasury Solicitor Bona Vacantia Division, ‘Guide to Discretionary Grants in Estates Cases’ (Treasury Solicitor, 2008) www.bonavacantia.gov.uk/output/DiscretionaryGrants-in-Estates-Cases.aspx. 297   ibid [30]. 298   ibid [30]. 299   ibid [30]. 300   ibid [30]. 301   ibid [33]. 302   ibid [34]–[35].



5.4  The Quantification of Relief 181 (a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future; (b) the financial resources and financial needs which any other applicant for an order . . . has or is likely to have in the foreseeable future; (c) the financial resources and financial needs which any beneficiary of the estate . . . has or is likely to have in the foreseeable future; (d) any obligations and responsibilities which the deceased had towards any applicant . . . or towards any beneficiary of the estate of the deceased; (e) the size and nature of the net estate . . .; (f) any physical or mental disability of any applicant for an order . . . or any beneficiary of the estate of the deceased; (g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

There is some doubt over the extent to which ‘conduct’ for these purposes is wider than under the Matrimonial Causes Act 1973. It has been said that the 1975 provision is expressed ‘in much wider or more general terms’,303 but Nigel Lowe and Gillian Douglas submit that the same test as under the 1973 Act should be used at least where the applicant is widowed or a former spouse or civil partner.304 For present purposes, the key questions are often the extent to which care is relevant as positive conduct, and whether obligations on the part of the deceased can be generated by care. These are addressed during the discussion of specific applicants in the following sections. The next subsection commences the analysis by evaluating the position of spouses and civil partners who are also carers. 5.4.5  Spouses and Civil Partners The spouses and civil partners category, contained in section 1(1)(a) of the 1975 Act, does not include an applicant who obtained a decree of divorce, dissolution or nullity in respect of his marriage or civil partnership to the deceased. It can include a party to a void marriage or civil partnership, provided the applicant entered the marriage or civil partnership in good faith.305 The threshold under the 1975 Act for successful applications by spouses who had not obtained a judicial separation and been separated at the time of death is not related to the applicant’s maintenance requirements. Instead it is founded upon what it ‘would be reasonable in all the circumstances of the case’ for a spouse or civil partner ‘to receive’.306 This contrasts with the   Malone v Harrison [1979] 1 WLR 1353 (Fam) 1364 (Hollings J).   N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 1117. 305   Inheritance (Provision for Family and Dependants) Act 1975, s 25(4)–(4A). 306   Inheritance (Provision for Family and Dependants) Act 1975, s 2(a)–(aa). 303 304

182  Family Provision position in New South Wales, where all applicants must show that ‘adequate provision for the proper maintenance, education or advancement in life’ has not been made by the deceased’s will, the intestacy rules or a combination of the two.307 In deciding what it would be reasonable for a spouse or civil partner to receive, an English court must consider, in addition to the general factors, the age of the applicant; the duration of the marriage or civil partnership; the provision that the applicant might have received on divorce or dis­ solution; and any contribution that the applicant made to the home or the family.308 The last two of these factors are considered in detail in the following subsections. 5.4.5.1  The Divorce Analogy and Care as a Domestic Contribution A ‘very important’309 consideration in England is ‘the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce’.310 Nevertheless, Oliver LJ was anxious to emphasise in Re Besterman (decd) that the ‘overriding consideration’ is reasonableness in the circumstances of the case.311 It is not true to say that ‘the entire fictional ancillary relief case should be played out’ in proceedings under the 1975 Act.312 It is also vital to emphasise that relief on divorce and on the death of one of the parties addresses very different factual circumstances. While the law on ancillary relief applies equally to two living spouses, family provision is concerned mainly with the position of the applicant (and the claims of third parties on the estate). This could have opposing consequences. On the one hand, there are more resources available to be transferred to the applicant and there was no conscious decision to end the marriage.313 On the other hand, as Wall LJ emphasised in Fielden v Cunliffe, ‘a deceased spouse who leaves a widow is entitled to bequeath his estate to whomsoever he pleases: his only statutory obligation is to make reasonable financial provision for his widow’.314 The Law Commission have recommended a clarifying amendment to the 1975 Act that would stipulate that the divorce analogy provides neither an upper nor a lower limit to the appropriate quantum of a family provision award.315   Succession Act 2006 (NSW), s 59(1)(c).   Inheritance (Provision for Family and Dependants) Act 1975, s 3(2). 309   Re Besterman (decd) [1984] Ch 458 (CA) 469 (Oliver LJ). 310   Inheritance (Provision for Family and Dependants) Act 1975, s 3(2). 311   Re Besterman (decd) (n 309) 469. 312   P v G (Family Provision: Relevance of Divorce Provision) [2004] EWHC 2944 (Fam), [2006] 1 FLR 431 [236] (Black J). 313   Fielden v Cunliffe [2005] EWCA Civ 1508, [2006] Ch 361 [30] (Wall LJ). 314   ibid [21]. 315   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [2.146]. 307 308



5.4  The Quantification of Relief 183

In ancillary relief proceedings themselves, the court is required to take account of a list of factors in section 25 of the Matrimonial Causes Act 1973, which bears a similarity to the relevant factors under the 1975 Act. Relief on divorce has, however, come to be dominated by the judicially developed principles of need, compensation and equal sharing.316 These principles have resulted in a considerable amount of uncertainty in the context of ancillary relief, and the law of family provision is to some extent subject to that volatility. The full effect of the House of Lords’ decision in the seminal case of Miller v Miller; McFarlane v McFarlane on family provision law is unclear.317 As discussed in section 5.4.1 above, the need and compensation principles are of relevance to carers. The fact that a spouse has been a carer could easily generate future needs. Moreover, the compensation principle is designed to redress ‘relationship-generated disadvantage’.318 The consequences of providing significant informal care are likely to constitute such disadvantage, although the disadvantage in question must be economic. As indicated above, the interaction between these principles must be observed carefully in order to prevent double recovery, and sometimes the courts have preferred to address compensation-based claims via ‘a generous assessment of . . . continuing needs’.319 It is interesting to note that in spite of the lack of a maintenance-based limitation for claims by spouses under the Act, future needs remain crucially important as a basis of relief. The key principle in ancillary relief law is that of equal sharing of the marital assets.320 That said, Wall LJ has acknowledged that because of the differing contexts of death and divorce, ‘the concept of equality may bear little relation’ to reasonable financial provision for a spouse.321 It should be noted that the equal sharing principle does not necessitate equal sharing of assets, but means that any departure from equal sharing must be justified.322 Somewhat ironically, the equality principle risks reducing the likelihood of care being distinctly and positively recognised other than   Miller v Miller; McFarlane v McFarlane (n 273).   See, eg Barron v Woodhead [2008] EWHC 810 (Ch), [2009] 1 FLR 747, where the decision was mentioned only briefly ([18] (Judge Behrens)), and Iqbal v Ahmed [2011] EWCA Civ 900, [2012] 1 FLR 31, which noted only the importance attached to the matrimonial home in the judgment of Lord Nicholls ([17] and [22] (Gross LJ)). 318   Miller v Miller; McFarlane v McFarlane (n 273) [140] (Lady Hale). 319   B v P [2008] EWHC 112 (Fam), [2008] 1 FLR 742 [59] (Sir Mark Potter P, giving the judgment of the court). 320   There is some uncertainty about the specific property to which this principle applies. See Miles, ‘Charman v Charman (No 4) – Making Sense of Need, Compensation and Equal Sharing after Miller/McFarlane’ (n 283) 381–85; Law Commission, ‘Clarifying the Law on Financial Provision for Couples when Relationships End’ (6 February 2012) lawcommission. justice.gov.uk/news/Press_notice_financial_provision.htm. 321   Fielden v Cunliffe (n 313) [21]. 322   Charman v Charman [2007] EWCA Civ 503, [2007] 1 FLR 1246 [65] (Sir Mark Potter P, giving the judgment of the court). 316 317

184  Family Provision through the mechanisms of meeting needs and granting compensation for relationship-generated economic disadvantage. The courts have shown a desire to avoid evaluating domestic endeavour, notwithstanding the fact that ‘contributions . . . to the welfare of the family, including any contribution by looking after the home or caring for the family’ are included among the relevant considerations in the statutory checklist in the Matrimonial Causes Act.323 Such contributions, although related to the equal sharing principle,324 are to an extent assumed to have been made by virtue of the parties being involved in a joint matrimonial partnership, sometimes without regard to significant evidence on the point. On Glennon’s analysis, ‘“[c]ontributions to the welfare of the family” have been removed as the central tenet of capital sharing and replaced by a principle which is based upon the fact of marriage as a partnership of equals’.325 That principle, she argues, is ‘of universal relevance’, such that ‘homemaking contributions, specifically caregiving, are not directly connected to its application’.326 An example of this approach is Miller v Miller itself.327 In this case, the House of Lords was content to award a significant slice of the marital acquest, which was generated primarily by the husband’s business dealings, to a wife who had eventually given up her job during a short marriage. Although there was some evidence in the Court of Appeal that Mrs Miller had undertaken interior design in respect of the parties’ homes during the marriage,328 the House of Lords reached its conclusion without considering such factors. Both contributions and conduct have been sidelined and subjected to the same test, such that they will be taken into account only if it is ‘inequit­ able to disregard’ them.329 This, in turn, means that unless conduct (or contribution) is ‘obvious and gross’, it will be ignored.330 One of the reasons why the House of Lords was reluctant to take account of arguments based on the ‘stellar contribution’ of one party in the vast majority of cases is that it would be difficult to demonstrate and evaluate such contributions in the domestic sphere.331 In Lambert v Lambert, Thorpe LJ regarded the suggestion that a mother’s care for a disabled child might be a stellar   Matrimonial Causes Act 1973, s 25(2)(f).   Charman v Charman (n 322) [72] (Sir Mark Potter P, giving the judgment of the court). 325  L Glennon, ‘Obligations Between Adult Partners: Moving from Form to Function?’ (2008) 22 International Journal of Law, Policy and the Family 22, 40. 326   ibid 40. 327   Miller v Miller; McFarlane v McFarlane (n 273). 328   Miller v Miller [2005] EWCA Civ 984, [2006] 1 FLR 151 [7]. 329   Matrimonial Causes Act 1973 s 25(2)(g); Miller v Miller; McFarlane v McFarlane (n 273) [145]–[146] (Lady Hale). 330   Wachtel v Wachtel [1973] Fam 72 (CA) 90 (Lord Denning MR, giving the judgment of the court). 331   Miller v Miller; McFarlane v McFarlane (n 273) [150] (Lady Hale). 323 324



5.4  The Quantification of Relief 185

contribution as ‘both theoretical and distasteful’.332 On this analysis: ‘[s]uch sacrifices and achievements are the product of love and commitment and are not to be counted in cash’.333 That said, the provision of care is surely a prime example of a situation where a ‘stellar domestic contribution’ might be present, and the possibility of such a contribution being recognised was seen as crucial to avoid gender discrimination in Charman v Charman.334 In spite of the difficulties of assessment, many informal carers have gone beyond the status of the ‘domestic goddess’ who, according to Lady Hale, ‘self-evidently makes a “stellar” contribution’.335 In Fielden v Cunliffe, the Court of Appeal took account of the fact that the applicant ‘might well have been expected to spend a number of years nursing an invalid’, and on that basis concluded that she had an expectation that her life as a single woman would not return to what it had been before her marriage, and that she would enjoy financial security for the rest of her life.336 It is doubtful that this approach remains good law, since it was based on a remark of Singer J at first instance in Miller v Miller337 and the House of Lords subsequently rejected the propriety of arguments based on such expectations.338 While the position is far from clear, it seems unlikely that the divorce analogy will substantially aid the specific recognition of care by a spouse under the 1975 Act other than as a source of needs and of economic disadvantage. The treatment of conduct and contribution under that Act itself in relation to care is the subject of the next subsection. 5.4.5.2  Conduct and Contribution under the 1975 Act As well as considering the divorce expectation and the age of the parties, the court must have regard to any ‘contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family’ under the 1975 Act.339 This is in addition to the possibility that the conduct of the applicant can be considered as one of the general factors, and the fact that it forms part of the divorce analogy discussed above. In Re Thornley (decd), Edmund Davies LJ was of the view that due to the widowed applicant’s contributions to the deceased’s business success and   Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103 [45].   ibid [45]. 334   Charman v Charman (n 322) [80] (Sir Mark Potter P, giving the judgment of the court). 335   Miller v Miller; McFarlane v McFarlane (n 273) [146]. 336   Fielden v Cunliffe (n 313) [71] (Wall LJ). 337   Miller v Miller [2005] EWHC 528 (Fam), [2005] 2 FLR 533 [65]. 338   Miller v Miller; McFarlane v McFarlane (n 273) [58] (Lord Nicholls). See also the submissions of counsel for Mr Miller: 622. 339   Inheritance (Provision for Family and Dependants) Act 1975, s 3(2). 332 333

186  Family Provision her toleration of his violence towards her, ‘the conduct of this wife demands and deserves both sympathy and admiration’.340 It should be noted that this case has not apparently been cited by a court in a family provision case since the passage of the 1975 Act. In any event, the English Law Commission assumed that ‘conduct’ would be considered in the same way under the 1975 Act as in ancillary relief proceedings,341 and the same may now be true of ‘contribution’. If this is the case, the test, as discussed above, is whether the contribution is such that it would be inequitable to disregard it. In Australia, there have been some cases dealing specifically with widows who had provided nursing services. In Goodman v Windeyer, the majority of the High Court of Australia was sympathetic to a widow who was a qualified nurse and looked after her husband night and day for the last 18 months of his life.342 While the English Court of Appeal in Charman found it ‘unnecessarily confusing to present a case of contribution as a positive type of conduct’ in the context of ancillary relief,343 the Australian High Court rejected the arguments that the conduct of the applicant was relevant only if it disentitled her. The Court also denied that positive conduct had to result in financial gain on the part of the deceased before it could be considered. While Gibbs J accepted that the court’s power was not ‘simply to reward the claimant for past services’, this did not mean that ‘the fact that the claimant has been a loving, helpful or dutiful spouse . . . can or should be ignored’.344 That said, much weight was given to the fact that the applicant had a dependent child at the time of the deceased’s death, and Aickin J (though concurring in the result) appeared to suggest that nursing services should be considered principally where they have had an impact on the applicant’s health or other aspects of his needs.345 In Montague v Montague, evidence that the applicant ‘cooked and did the household chores and cared for the deceased in bouts of illness’ was not given as much weight as the fact that the wife ‘cared for her husband as a qualified nurse during his prolonged period of serious illness’ in Goodman.346 On the other hand, in Sturits v Nicholls Macready AsJ noted that the claimant wife, who had separated from her deceased husband, was ‘effectively the deceased’s sole carer up until a period of approximately three months prior to his death’.347 For this reason and others, Macready AsJ found that the deceased owed his wife a moral obligation despite the fact that the last years of their marriage ‘appear   Re Thornley (decd) [1969] 1 WLR 1037 (CA) 1043.   Law Commission, Second Report on Family Property: Family Provision on Death (n 129) [36]. 342   Goodman v Windeyer (1980) 144 CLR 490. 343   Charman v Charman (n 322) [72] (Sir Mark Potter). 344   Goodman v Windeyer (n 342) 498. 345   ibid 511. 346   Montague v Montague [2002] NSWSC 328 [45] (Austin J). 347   Sturits v Nicholls [2011] NSWSC 599 [73]. 340 341



5.4  The Quantification of Relief 187

to have been a particularly unhappy time that was dogged by alcohol abuse, illness and some violence’.348 In England, by contrast, it is unlikely that the requirement to take into account conduct and contribution under the 1975 Act will now add much to the treatment of those elements as part of the divorce expectation. All things considered, an applicant who acted as an informal carer for his spouse or civil partner could have difficulty in obtaining specific recognition for his caring contribution on the death of the care recipient other than as a factor generating needs, although it can engage the ‘compensation’ principle if it has resulted in economic disadvantage. Conversely, in Iqbal v Ahmed, the conduct of the deceased’s wife was considered ‘largely irrelevant’349 in spite of the deceased’s recorded view that she had ‘not been a loving and caring wife before and during [his] illness’.350 5.4.6  Former Spouses and Civil Partners Only those divorcees and their civil partner equivalents who did not enter a subsequent marriage or civil partnership are eligible under section 1(1) (b) of the 1975 Act.351 Moreover, given the modern emphasis on the ‘clean break’ to be found in ancillary relief on divorce,352 it is now unlikely that an application by a former spouse will succeed. A court has the power to preclude applications under the 1975 Act when making a clean break order,353 and in practice courts almost always do so. In Cameron v Treasury Solicitor, Thorpe LJ went so far as to say that a failure to bar such claims when making a clean break order would ‘be so irregular as to suggest fundamental error in the drafting’.354 In Australia, relief on divorce also precludes a family provision claim in general.355 It therefore seems unlikely that provision for former spouses and civil partners is particularly relevant to the present discussion.

  ibid [73].   Iqbal v Ahmed (n 317) [10] (Gross LJ, summarising Judge Bidder QC’s findings, which were upheld). 350   ibid [8]. It was noted, however, that the wife had nevertheless ‘kept house and cooked for [the deceased] and looked after and cared for him when he was ill’ ([29] (Pill LJ)). 351   The court has a discretion to apply the ‘surviving spouse standard’, as opposed to the ‘maintenance standard’ when ordering provision for a former spouse in highly exceptional circumstances: see Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8-15]. 352   Matrimonial Causes Act 1973, s 25A(1). 353   Inheritance (Provision for Family and Dependants) Act 1975, s 15. 354   Cameron v Treasury Solicitor [1996] 2 FLR 716 (CA) 723. 355   de Groot and Nickel, Family Provision in Australia (n 2) [7.16]. 348 349

188  Family Provision 5.4.7 Cohabitants There are apparently few reported English cases where cohabitants have succeeded in bringing a claim against the deceased’s estate since the introduction of the category in 1995, whether carers or not.356 The age of the applicant, the length of time that he lived as the spouse or civil partner of the deceased and the contribution to the welfare of the family are the specific factors to be considered.357 In Australia, by contrast, there have been a number of reported successful claims by cohabitants who were also carers.358 In Newnham v Tarbert, for example, the Court of Appeal of New South Wales found that the deceased owed a moral obligation to the applicant because of what she had done for him.359 Although the applicant and the deceased were found to have lived ‘in a degree of disorganisation or indeed of squalor’,360 it was held that the applicant provided ‘such care as she was able to in circumstances which, to an ordinary person, must have been very difficult’.361 As discussed in section 5.4.9 below, the propriety of the language of ‘moral obligation’ has been doubted by the English Court of Appeal. Some carers may be able to bring alternative claims as a dependent and a cohabitant under the English legislation. Piggott and Windram opine that they will ‘almost certainly’ be awarded less as a dependant,362 although the County Court judge in Witkowska v Kaminski was satisfied that a claim as a cohabitant ‘would not result in any substantially different award’ from that which he would have given under the ‘dependant’ category.363 The significant limitation in either case, however, is that relief must be required for maintenance, and the future needs of the applicant will be more important in the quantification of any award than work done in the past. The same is apparently true in New South Wales, even in cases where care provided by the applicant is considered relevant. In Newnham, the Court of Appeal of New South Wales took account of the fact that the applicant had no assets and was ‘essentially unemployable’ in making an order sufficient to provide her with modest accommodation.364

356   The reported judgment in Gully v Dix (n 120), for example, concerned only eligibility to claim under the Act. 357   Inheritance (Provision for Family and Dependants) Act 1975, s 3. 358   See, eg the cases listed in de Groot and Nickel, Family Provision in Australia (n 2) [4.23]. 359   Newnham v Tarbert [1990] NSWCA 138 (unreported judgment). 360   ibid 7 (Samuels JA). 361   ibid 6 (Mahoney JA). 362   Piggott and Windram, ‘Cohabitants and the Inheritance Act – Extending the Boundaries’ (n 204) 820. 363   Witkowska v Kaminski [2006] EWHC 1940 (Ch), [2007] 1 FLR 1547 [22] (Blackburne J, citing the judgment of Judge Cowell). 364   Newnham v Tarbert (n 359) 6 (Mahoney JA).



5.4  The Quantification of Relief 189

The English Law Commission recommended that the treatment of cohabitants under the 1975 Act be amended to reflect its scheme for relationship breakdown, if and when such a scheme is ever enacted.365 Even if their proposals were enacted, care would be specifically rewarded mainly where it generated sufficient economic disadvantage. It might be possible to characterise care as leading to an economic advantage retained in the hands of the defendant, but (at least in the context of care for children) the Law Commission consider that this would be possible only in exceptional circumstances.366 In section 5.3, it was thought to be possible, if highly unlikely, that a ‘pure’ carer could bring a claim as a ‘cohabitant’ under the 1975 Act. The category with some more relevance to the ‘pure’ carer is the dependant, and the awarding of family provision for dependent carers is considered in the next subsection. 5.4.8 Dependants As before, the court should consider the general factors when reaching a decision on whether and to what extent provision should be awarded for a dependant. The sole additional factor for this category is ‘the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility’.367 Many of the cases on eligibility considered in section 5.3 during the discussion on ‘pure’ carers were decisions on preliminary issues, and thus the reader is left ignorant of the provision (if any) in fact awarded in those cases.368 Nevertheless, in Jelley v Iliffe, the Court of Appeal found ‘several indications that the plaintiff’s case is likely to fail’.369 Of most relevance for present purposes, the amount that the deceased did for the applicant was thought to be a relevant consideration as conduct under section 3(g). This will weaken the case of any applicant whose claim as a dependant is based on the provision of housing by the deceased. Graham v Murphy concerned the quantum of provision for a claimant under section 1(1)(e) in a care situation.370 The deceased care recipient and 365  Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007) part 6; Law Commission, Intestacy and Family Provision Claims on Death (n 18) [8.164]. 366  Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (ibid) [4.48]. See Glennon, ‘Obligations Between Adult Partners: Moving from Form to Function?’ (n 325) for criticism. 367   Inheritance (Provision for Family and Dependants) Act 1975, s 3(4). 368   Dewar, ‘Cohabitees: Contributions and Consideration’ (n 138). 369   Jelley v Iliffe (n 120) 139. 370   Graham v Murphy [1997] 1 FLR 860 (Ch).

190  Family Provision cohabitant had been wealthy. Robert Walker J, however, held that the court’s objective was not to provide the claimant with a commensurate standard of living. He was given enough to purchase a modest house or flat in a less expensive area than that in which he and the deceased had lived. Significantly, Robert Walker J noted that the applicant was employed and ‘no longer ha[d] to take time off to look after’ the deceased.371 There is therefore some suggestion that, as is the case with the eligibility of dependent carers, care provided can prejudice an application under the Act. The lack of evidence on precisely how much the applicant did for the deceased in Graham made Robert Walker J particularly unwilling to treat the case ‘in terms of moral obligation’,372 although he later recognised the care as being relevant ‘however imperfect it was’.373 In the New South Wales case of Blackley v Proctor, discussed in section 5.3.2 above, the fact that a dependant, as a carer, did ‘more than one would normally expect from a boarder or a lodger’ was said to warrant his application.374 Nevertheless, the provision actually made as a result was heavily influenced by the ‘modest assets but on-going and pressing needs’ caused by the illness of the carer and his wife.375 In both England and Australia, therefore, future need is a crucial factor. 5.4.9  Adult Children and Children of the Family Under the original English 1938 Act, adult children could apply only if they were unmarried daughters or suffered from a disability such that they were unable to maintain themselves. The ‘children’ category now includes all illegitimate, adopted and posthumous children irrespective of their age or marital status. Those who were treated as a ‘child of the family’ in relation to the deceased’s marriage or civil partnership are also included. The courts have adopted a generous interpretation of the notion of treatment as a child of the family, which can permit a claim by stepchildren who were adults at the time of the marriage or civil partnership in question.376 The Law Commission have proposed that this category be further extended to all those treated by the deceased as her child, irrespective of the deceased’s relationship with any other person.377 Such an amendment might be thought to extend the potential range of applicants very significantly in view of the wide variety of parent–child relationships, and facets of those relationships,   ibid 867.   ibid 868.   ibid 869. 374   Blackley v Proctor (n 174) [27] (Acting Master Berecry). 375   ibid [32] (Acting Master Berecry). 376   See especially Re Leach (decd) [1986] Ch 226. 377   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.41]. 371 372 373



5.4  The Quantification of Relief 191

in existence. Accepting care could arguably constitute treating the carer as a child, but the Commission specifically asserted that ‘simply helping an elderly neighbour, without much more’ would not justify a conclusion that the helper was being treated as a child of the family by the neighbour.378 The position of the adult child who has cared for a parent is a complex one in the context of family provision law.379 Section 5.4.9.1 highlights the difficulties faced by such a carer if he retains earning capacity. Section 5.4.9.2 deals with the distinctive position in New Zealand, where a familial relationship alone could traditionally justify provision. Section 5.4.9.3 considers whether care can generate a relevant obligation towards an adult child and section 5.4.9.4 whether a promise made to that child can do so, while section 5.4.9.5 investigates the relevance of care (or lack thereof) as part of the conduct of the applicant. Finally, section 5.4.9.6 considers claims by children of the family. 5.4.9.1  Judicial Suspicions As ever, the focus of the award of relief is very much on the needs of the applicant, due to the ‘maintenance’ limitation. Indeed, the justification put forward by the Law Commission for removing the age limits in relation to an adult son was that such an application ‘could not succeed unless the court found that the deceased had failed to make reasonable provision for that child’s maintenance’.380 For example, the court is directed to examine ‘the manner in which the applicant was being or in which he might expect to be educated or trained’, which is once more a forward-looking factor.381 Although awards made are not necessarily limited to providing ‘bare necessities’,382 and ‘Parliament intended that an adult child should be able to bring a claim even if it was possible for him or her to subsist without making a claim’,383 it has been suggested by Peart and Borkowski that the English judiciary has adopted a ‘parsimonious’ approach to claims by adult children.384 This is encapsulated in Browne-Wilkinson J’s remark that:   ibid [6.38].   For a comparative analysis of such claims in England and Wales and Ireland, see B Sloan, ‘Testamentary Freedom and Caring Adult Offspring in England & Wales and Ireland’ in K Boele-Woelki, J Miles and JM Scherpe (eds), The Future of Family Property in Europe: Proceedings of the 4th Conference of the Commission on European Family Law (Cambridge, Intersentia, 2011). 380   Law Commission, Family Property Law (n 78) [74]. 381   Inheritance (Provision for Family and Dependants) Act 1975, s 3(3). 382   Lowe and Douglas, Bromley’s Family Law (n 304) 1113. 383   Ilott v Mitson (n 6) [72] (Arden LJ). 384   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 333. 378 379

192  Family Provision A person who is physically capable of earning his own living faces a difficult task in getting provision made for him, because the court is inclined to ask: ‘Why should anybody else make provision for you if you are capable of maintaining yourself?’385

It seems that a claim by an adult child with earning capacity is unlikely to succeed unless the applicant can show that the deceased owed a moral obligation to him,386 or that some other special circumstances justify the order.387 That said, neither of these constitute a ‘threshold requirement’388 and the size of the estate is a pertinent consideration.389 Moreover, Paul Matthews claims that there has been a recent increase in successful claims by ‘ostensibly able-bodied’ adult children under the 1975 Act.390 Many carers will have a reduced or non-existent earning capacity as a result of the provision of care. Even so, the courts have recently demonstrated more of an expectation that spouses who look after children will eventually return to work in some sense in the context of ancillary relief,391 and the focus on future earning capacity in family provision law fails adequately to recognise the value of care work performed in the past. Indeed, in the New South Wales case of Permanent Trustee Co Ltd v Fraser it was explicitly said that ‘a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the [family provision] legislation’.392 Moreover, any requirement to show an extra obligation where earning capacity is retained by an adult child is particularly problematic when compared to cases involving so-called ‘lame ducks’,393 where the applicant has needs caused by his own failings. Espinosa v Bourke,394 discussed in detail in sections 5.4.9.3 and 5.4.9.4, is such a case. There, provision was made in spite of the fact that the applicant eventually neglected her father and found herself in necessitous circumstances due at least in part to a lifestyle of which the deceased clearly disapproved. Kerridge criticises the ‘unfairness towards children . . . who, having led virtuous lives, are then treated less generously than their prodigal brothers and sisters’.395 He draws an analogy in this respect with the fact, discussed in section 5.3, that a dependant is less likely to succeed if he has done something for the deceased.396   Re Dennis (decd) (n 274) 145.   See section 5.4.9.3 below for a discussion of the propriety of this terminology. 387   Re Hancock (decd) [1998] 2 FLR 346 (CA). 388   Espinosa v Bourke [1999] 1 FLR 747 (CA) 755 (Butler-Sloss LJ). 389   Myers v Myers [2004] EWHC 1944 (Fam), [2005] WTLR 851. 390   P Matthews, ‘Perspective 5: Comparative Law – United Kingdom’ in Castelein, Foqué and Verbeke (eds), Imperative Succession Law in a Late-Modern Society (n 40) 145. 391   See, eg Miller v Miller; McFarlane v McFarlane (n 273) [155] (Lady Hale). 392   Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, 42 (Sheller JA). 393   Re Hatte [1943] St R Qd 1, 26 (Philp J). 394   Espinosa v Bourke (n 388). 395  Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8-62]. 396  ibid. 385 386



5.4  The Quantification of Relief 193

The state of affairs in New Zealand, whereby adult children can to some extent be provided for on the basis of their family ties alone, is considered in the next subsection. 5.4.9.2  New Zealand: The Sufficiency of Family Ties? In New Zealand, the relationship of parent and child was traditionally considered sufficient in itself to justify provision,397 and a common reason for claims under the Family Protection Act 1955 was that the testator had failed to provide equally for each of her children.398 According to Gresson P in Re Harrison (decd), Thomson v Harrison: ‘There can be a moral obligation to make provision for a daughter, or indeed a son, even if that child is comfortably situated financially’.399 Indeed, Peart and Borkowski claim that in a significant number of cases, the applicants were in no financial need at all and succeeded purely because they were children who had done nothing to disentitle themselves from provision.400 Even ‘disentitling’ conduct tended merely to reduce the extent of the duty rather than extinguish it.401 This broader scope was made possible by the interpretation of ‘proper maintenance and support’ in the Family Protection Act 1955.402 Until the mid 1990s, as Peart and Borkowski put it, ‘[d]isinheriting a child was frowned upon by the courts because it was seen as a rejection from the family’.403 That said, contributions benefiting the deceased made by the claimant were sometimes held to justify a claim under the Act, on the basis that they increase the moral obligation owed.404 Conversely, personal contributions by children other than the claimant could reduce the chance that a claim would succeed.405 The expansive interpretation of the Act undertaken by the courts led the New Zealand Law Commission to propose reforms that would restrict adult children from making support claims unless they are in genuine need or sought a ‘memento’ only, although they could make a ‘contribution 397   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43). 398  ibid. 399   Harrison (decd), Thomson v Harrison [1962] NZLR 6, 14. 400   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43). See also N Peart, ‘New Zealand Report on New Developments in Succession Law’ (2010) 14(2) Electronic Journal of Comparative Law [1.3]. 401   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 337. cf Henry v Henry [2007] NZCA 42, [2007] NZFLR 640, a case involving an adult child in need. 402   Family Protection Act 1955 (NZ), s 4(1). 403   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 338. 404   ibid 337. 405   ibid 337; cf Kirby v Sims [2011] NZHC 935 [97] (Clifford J).

194  Family Provision claim’ if they had benefited the deceased in some way.406 These proposals were never implemented, and Peart makes the ‘logical inference’ that ‘Parliament endorsed the court’s very liberal interference with testamentary wishes despite the widespread criticism and questionable basis for such interference’.407 Nevertheless, as a result of the Law Commission’s report, Peart and Borkowski claim that the New Zealand courts have recently adopted a more cautious approach, albeit still more liberal than the English approach.408 In one case, Boshler J proclaimed that it was time for a return to the language of the statute and to ‘lessen the embellishment’ that it had previously been given.409 In Williams v Aucutt, the Court of Appeal took note of ‘pointers to concerns that some orders in recent years may have been out of line with current social attitudes to testamentary freedom relative to claims by adult children’.410 That case heralded a more conservative interpretation of the testator’s moral duty,411 although it has been argued that it remains possible for claims to succeed even if they are based solely on the family bond.412 Prior to the recent adoption of a more restrictive approach, the law in New Zealand was towards the other end of the scale to English law.413 There is a risk that a caring son or daughter will fall between these extremes. Such carers may not have any needs, and their care is given no recognition if they are provided for simply because of their legal relationships with their parents. Similarly, while Dot Reid sees the frequent assumption of responsibility for informal care as a potential justification for retaining fixed shares for family members in Scotland,414 she also accepts that care responsibilities are often distributed among only a few family members.415 The next subsection investigates whether this dif406   New Zealand Law Commission, Succession Law: A Succession (Adjustment) Act (New Zealand Law Commission Report 39, 1997). ‘Contribution claims’ were analysed in section 3.3 above. 407  Peart, ‘New Zealand’s Succession Law: Subverting Reasonable Expectations’ (n 35) 374. 408   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 339–42. 409   Re Walker, Walker v Jordan [1998] NZFLR 726, 732. 410   Williams v Aucutt [2000] NZCA 289, [2000] 2 NZLR 479 [45] (judgment of the Court). 411  See Kirby v Sims (n 405) [53]–[63] (Clifford J) for discussion. 412   N Peart and B Patterson, ‘Charities and the FPA: A Turning Tide’ [2007] New Zealand Law Journal 53, 54. 413   Fearon v The Public Trustee [2008] NZHC 1835 is a New Zealand family provision case where a carer sought to vary the equal division of his mother’s estate by will between himself and his two siblings. The claim was dismissed on the basis of a lack of evidence that care was provided at significant cost to the applicant, and that he had received significant benefits from his mother. 414   D Reid, ‘From the Cradle to the Grave: Politics, Families and Inheritance Law’ (2008) 12 Edinburgh Law Review 391. 415   This point is made in Scottish Law Commission, Report on Succession (n 42) [3.26].



5.4  The Quantification of Relief 195

ficulty can be circumvented through the idea that the receipt of care generates a moral obligation on the part of the now deceased care recipient. 5.4.9.3  Care and the Deceased’s Obligations There has been a tendency to emphasise the significance of any ‘moral obligations’ owed by the deceased in the English case law involving adult children, and this has been criticised as a value-laden relic of the 1938 legislation.416 In Espinosa v Bourke, Butler-Sloss LJ denied that the Court of Appeal had placed a ‘gloss’ on the language of the legislation.417 All of the judges in that case expressed misgivings about the use of the word ‘moral’, emphasising that it was intended simply to avoid restricting relevant obligations to legal ones. In Re Hancock, moreover, it had been confirmed that a moral obligation was not a precondition of a successful application.418 The concept of a moral obligation remains in evidence, however, and Borkowski notes that the courts have often been reluctant to clarify its meaning.419 In Australia the moral claim of the applicant on the deceased’s estate, which is also expressed as a moral duty or obligation on the part of the deceased, is generally thought to be important even if its consideration is not explicitly required in a relevant Act.420 There is some suggestion from the English courts that care could be a relevant ‘moral obligation’, even though it is not necessary to demonstrate one. In Re Jennings, Henry LJ considered a hypothetical scenario in which an adult child gave up a university place ‘to nurse the deceased through his long last illness’.421 Henry LJ suggested that there would be a ‘clear’ moral obligation on the deceased to enable the applicant to take up that place.422 Even here, the focus would be on the needs of the carer that were generated by caring. For example, in Lloyds Bank v Riggs, the basis of the claimant’s application for provision under the 1975 Act was that she ‘was a daughter who had helped her father and for whom it was therefore reasonable that the father should make provision by his will’.423 In the Court of Appeal, Dillon LJ criticised the trial judge for turning this into a 416   J Wilson and R Bailey-Harris, ‘Family Provision: The Adult Child and Moral Obligation’ [2005] Family Law 555. 417   Espinosa v Bourke (n 388) 755; cf Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2, (1979) 143 CLR 134, 158 (Murphy J). 418   Re Hancock (decd) (n 387). 419   A Borkowski, ‘Moral Obligation and Family Provision: Re Hancock (decd) and Espinosa v Bourke’ (1999) 11 Child and Family Law Quarterly 305. 420   de Groot and Nickel, Family Provision in Australia (n 2) [2.6]. See also the Irish Succession Act 1965, s 117, which (as discussed in Sloan, ‘Testamentary Freedom and Caring Adult Offspring in England & Wales and Ireland’ (n 379)) specifies a failure in the testator’s ‘moral duty’ as the very basis of a claim. 421   Re Jennings [1994] Ch 286 (CA) 300. 422  ibid 300. 423   Lloyds Bank v Riggs [1992] EWCA Civ J1127-7, 10.

196  Family Provision need for maintenance by taking into account the future dependence of her own children when it had not been put to him and there was ‘no general need for maintenance’ on the part of the claimant.424 That said, in the Northern Irish case of Estate of McGarrell,425 applying legislation modelled on the English 1975 Act,426 Hutton J found that the applicant had established a moral claim on her father’s estate by doing housework for him and looking after him. An order was made even though it is doubtful that the applicant’s earning capacity was affected by the work she did.427 Hutton J was content that the applicant was living in ‘difficult financial circumstances’, and for him it was sufficient that the order would not ‘constitute something in excess of maintenance’.428 In Espinosa v Bourke, it was accepted at first instance that the applicant was owed a moral obligation by her deceased father because of the care that she provided for him (as well as because of a promise that he would leave certain property to her).429 Nevertheless, the judge found that any obligation had been discharged by the deceased during his life through direct transfers and benefits in kind. Such countervailing benefits will be important considerations in any care scenario. Similarly, in Re Coventry it was suggested that a moral obligation could be generated by an applicant’s forgoing of an adequate living to look after a disabled parent.430 However, neither the first instance judge nor the Court of Appeal could find sufficient evidence of such a sacrifice on the facts. Analogously with Espinosa, it was noted that the applicant had the benefit of free accommodation provided by the deceased during the relevant period. The same factors were found to be present in the more recent New South Wales case of Hatton v Hatton.431 It is ironic that, as demonstrated above, a ‘pure’ carer is significantly less likely to be able to bring a claim at all under the 1975 Act in the absence of such provision of accommodation or a similar benefit. The first instance judge in Espinosa was also influenced by the fact that the applicant’s commitment to her father dwindled, implying that a failure to care for a deceased parent can have a negative effect on a claim under the Act. On appeal, the majority held that the judge had focused too heavily on the obligation question at the expense of considering the applicant’s   ibid 11.   Estate of McGarrell [1983] 8 NIJB.  Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979, SI 1979/924 (NI 8). 427   G Miller, ‘Provision for adult children under the Inheritance (Provision for Family and Dependants) Act 1975’ [1995] Conveyancer and Property Lawyer 22, 29. 428   Estate of McGarrell (n 425). 429   Espinosa v Bourke (n 388). See section 5.4.9.4 below for a discussion of the ‘promise’ aspect of such cases. 430   Re Coventry (n 1) 490 and 495 (Oliver J). 431   Hatton v Hatton [2012] NSWSC 182. 424 425 426



5.4  The Quantification of Relief 197

needs. In any event, the Court of Appeal concluded that she had needs stemming from the care of her father, since she had given up any prospect of employment. Butler-Sloss LJ appeared to accept that the care in Espinosa could itself have generated an obligation if it had not been compensated for by the father’s payment of the mortgage and other outgoings.432 When fashioning relief, the courts are therefore somewhat ambivalent on the question whether care generates a moral obligation, as well as on the relevance of an obligation thereby generated. 5.4.9.4  Promises of Provision At this point in the book, it is necessary to ascertain whether a promise made by the deceased to an eligible applicant has any effect on the success of a family provision claim in spite of the fact that the 1975 Act ‘is not intended to provide a means of enforcing testamentary promises’.433 This clearly has more relevance to unconscionability of dealing than it does to unconscionability of outcome, but promises are particularly relevant in family provision claims by adult children of the deceased because of the continuing relevance of the deceased’s ‘moral obligation’. Express or implied promises to benefit the applicant are examples of situations where a moral obligation on the part of the deceased is likely to be found,434 although it may be the promise rather than the care that is crucial. In Espinosa v Bourke,435 a promise made by the deceased father to leave to the applicant daughter property that he originally inherited from his wife was a weighty consideration for the purposes of the 1975 Act. In that case, however, the promise does not appear to have been related to the care provided by the daughter for the father. That said, the significance of a combination of a promise and work has been recognised in several cases. A promise was said to generate a moral obligation in Re Pearce (decd), which involved a classic estoppel-type scenario of a son who was promised that he would inherit a farm,436 and in the ‘child of the family’ case of Re Leach (decd).437 In Re Abram (decd),438 it was found that the ‘case for moral obligation or special circumstances’ remained ‘overwhelming’ because the applicant worked in the family business for a significant period for low pay in the belief that it would be his, even though he eventually left through force majeure.439   Espinosa v Bourke (n 388) 757.   Wells, ‘Testamentary Promises: A New Approach’ (n 263) 55. 434   Re Goodchild (decd) [1996] 1 FLR 591 (Ch). 435   Espinosa v Bourke (n 388). 436   Re Pearce (decd) [1998] 2 FLR 705 (CA). 437   Re Leach (decd) (n 376). 438   Re Abram (decd) [1996] 2 FLR 379 (Ch). 439   ibid 394. 432 433

198  Family Provision In Vukic v Luca Grbin, Estate of Zvonko Grbin, the Supreme Court of New South Wales was of the view that: ‘Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant’.440 Brereton J considered such promises to be particularly relevant where detrimental reliance was present, and he drew an analogy with the unconscionability relevant to estoppel claims. It therefore seems that a promise of provision is often of some relevance to family provision claims. Where an estoppel claim could be brought by virtue of a promise made, however, the 1975 Act and similar statutes might be less useful because of the general need to show that inadequate provision has been made for maintenance. This will often compare unfavourably with the combined consideration of the extent of the claimant’s detriment and the value of his expectation. 5.4.9.5  Care and Conduct While care could be taken into account as relevant conduct on the part of the adult child, in Re Coventry it was emphasised at first instance that: ‘It is not the purpose of the Act to provide legacies or rewards for meritorious conduct.’441 Conduct is therefore more likely to be considered in a negative sense. In Espinosa, Butler-Sloss LJ admitted that the daughter’s eventual neglect of her father could have negated any obligation owed to her because of her care. A potentially inconsistent conclusion was drawn by Judge Norris QC in the extraordinary case of Re Land (decd).442 The applicant in that case had been so neglectful in the care of his mother that he had been convicted of her gross negligent manslaughter,443 and the forfeiture rule applied to his entitlement under her will.444 Nevertheless, his application under the 1975 Act succeeded.445 To allow the forfeiture rule to govern the matter and preclude such a claim, in the view of Judge Norris QC, ‘deprives the one person who devoted himself to the deceased’s care without significant outside support (albeit that he lapsed at the end) of the benefit she intended for him and confers it upon remote relations most of whom did absolutely   Vukic v Luca Grbin, Estate of Zvonko Grbin [2006] NSWSC 41 [38] (Brereton J).   Re Coventry (n 1) 474 (Oliver J).   Re Land (decd) [2006] EWHC 2069 (Ch), [2007] 1 WLR 1009. 443   See J Herring, ‘The Legal Duties of Carers’ (2010) 18 Medical Law Review 248 for a general discussion of carers’ obligations in this context. 444   According to s 1(1) of the Forfeiture Act 1982, this is ‘the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing’. 445   This was deemed to be permissible under s 3 of the Forfeiture Act 1982, as interpreted subject to s 3 of the Human Rights Act 1998 in conjunction with Article 1 of the First Protocol of the European Convention on Human Rights. 440 441 442



5.4  The Quantification of Relief 199

nothing for her’.446 He was influenced by the fact that the applicant’s situation had been one of ‘inadequacy’, a failure to recognise that inadequacy and a ‘hesitancy’ to ask for outside help, towards which Judge Norris QC appeared to be sympathetic.447 Most importantly for present purposes, the judge accepted that the deceased recognised an obligation towards the applicant. He also refused to hold that that the applicant’s conduct had a disentitling effect. While it was said to be correct that the applicant should be punished through criminal proceedings and by being deprived of the legacy that his mother had left, the judge was reluctant to impose a further penalty by denying reasonable financial provision. A consistent conclusion was reached in less extreme circumstances in the Northern Irish case of Re McKernan (decd).448 Deeny J recognised that ‘the plaintiff daughter was not a dependable provider of care to the mother and was viewed by [the deceased] . . . as lazy’.449 This was not considered to justify a total lack of provision for the daughter under the mother’s will, although ‘it could justify a distinction being drawn’ between the daughter and her siblings.450 The judicial sympathy bestowed on applicants in some ‘neglect’ cases is laudable. Nevertheless, it undermines the significance of care where it is in fact provided, and arguably results in injustice similar to that which can be caused by ‘lame duck’ cases. In Blore v Lang it was made clear by the High Court of Australia that ‘good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court’.451 On the other hand, the High Court said in Goodman v Windeyer that such conduct was not to be considered irrelevant, and the approach of looking for a ‘special need’ before allowing a claim by an adult son452 has been discredited in New South Wales.453 5.4.9.6  The Special Case of a ‘Child of the Family’ In relation to children of the family, the court must also consider whether and to what extent the deceased assumed responsibility for the applicant,454 whether this was done in the knowledge that the applicant was not the   Re Land (decd) (n 442) [24].   ibid [27]. 448   Re McKernan (decd) [2007] NICh 6. 449   ibid [37]. 450   ibid [37] (Deeny J). 451   Blore v Lang [1960] HCA 73, (1960) 104 CLR 124, 134 (Fullagar and Menzies JJ). 452   Re Sinnott [1948] VLR 279, 280 (Fullagar J). 453   Hunter v Hunter (1987) 8 NSWLR 573. 454   The Law Commission has proposed amendments to bring the Act in line with its proposals on ‘assumption of responsibility’ for dependants applying under s 1(1)(e) (discussed in section 5.3.2.3 above): Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.63]–[6.65]. 446 447

200  Family Provision deceased’s own child and the liability of any other person to maintain the applicant.455 Re Callaghan (decd) suggests that care provided by a child of the family can be relevant in determining whether reasonable financial provision has been made.456 In that case, the deceased had treated a stepson as if he were a biological child of his own, and took responsibility for advising, supporting and disciplining him at various stages in the stepson’s life. The applicant stepson and his wife undertook to provide care for the deceased during the last four months of his life, during which time he suffered from a ‘painful and distressing illness’ and was a ‘bad patient’ who discharged himself from hospital several times.457 Booth J held that the deceased’s obligations and responsibilities towards the applicant were ‘very considerable indeed’, effectively being those of a ‘widowed parent to a dutiful and responsible only child’.458 An award under the 1975 Act was therefore made. In New South Wales, stepchildren must apply as dependants, although the dependency can relate to any time in the deceased’s life.459 By contrast, Peart and Borkowski argue that in New Zealand, most adult stepchildren are in substance ineligible under the 1955 Act460 on the basis that they must be maintained at the time of death before they can claim a remedy.461 5.4.9.7  Conclusion on Adult Children Kerridge has pointed out that claims by adult children often have overlapping bases and distinctive circumstances.462 It can therefore be difficult to isolate the precise reasoning of the court in a given case. Any care provided is often mentioned by judges, but it is frequently unclear what (if any) effect it has on the result. This uncertainty is in evidence in relation to care provided by all categories of applicant under the 1975 Act. It is arguable that the state of affairs is inevitable given the focus on maintenance that pervades the Act. The Law Commission of England and Wales invited consultees’ views on whether and how adult children should be given a greater chance of success in claiming under an amended 1975 Act.463 In doing so, however, the Commission expressed understandable concern that it would be ‘dif  Inheritance (Provision for Family and Dependants) Act 1975, s 3(3).   Re Callaghan (decd) [1985] Fam 1.   ibid 4 (Booth J). 458   ibid 7. 459   Succession Act 2006 (NSW), s 57(e). 460   Peart and Borkowski, ‘Provision for Adult Children on Death – The Lesson from New Zealand’ (n 43) 338. 461   Re Welch [1990] 3 NZLR 1, 3 (Sir Robin Cooke). 462  Kerridge, Parry and Kerridge: The Law of Succession (n 31) [8-59] and [8-62]. 463   Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (n 116) [5.19]. 455 456 457



5.4  The Quantification of Relief 201

ficult to find a justification for doing so that was both clear, and consistent with the rest of the law’, particularly if the maintenance limitation were removed.464 As a result, they provisionally recommended no change, and maintained that view in their final Report.465 That said, the New Zealand Law Commission’s proposals on ‘contributor claims’466 suggest that provision of care would be a viable addition to the factors taken into account. In the next subsection, the opportunity is taken to investigate the relevance of care in itself to the relief granted to a party to a ‘close personal relationship’ in New South Wales. This is significant since the category was seemingly introduced to remedy detriment suffered by a carer in the past. 5.4.10  Parties to a ‘Close Personal Relationship’ in New South Wales The purpose of the ‘close personal relationship’ category, discussed in section 5.3.4 above, is to provide an ‘avenue for redress for people who suffer some detriment’ as a result of caring activities undertaken in the past. Nevertheless, there is evidence of the consideration of future needs when determining the appropriate provision, as with the other categories of claimant considered in this section, not least because claims must still be based on adequate provision for ‘maintenance, education or advancement in life’. Sometimes this need has little or no connection with the care undertaken. For example, in Jurd v Public Trustee, an order was made to give the applicant ‘a start’ following a spell in prison and a drug problem.467 An aspect of that decision consistent with a backward-looking approach, however, is the consideration of the free accommodation and other benefits, as well as the length of the relationship between the applicant and the deceased, as factors limiting the award. Significantly, in the Victorian case of Unger v Sanchez the fact that the applicant was not in need was not decisive, given, amongst other factors, her ‘exceptionally strong deserts’ in caring for the testator and her husband.468 In New South Wales, the 2008 amending Act made changes to the wording of the relevant considerations as compared to the Family Provision Act 1982, and it remains to be seen whether these will have a significant impact on the exercise of the court’s discretion. Section 60(2)(h) of the amended Succession Act 2006 permits the court to have regard to ‘any contribution (whether financial or otherwise) by the applicant . . . to . . . the welfare of the deceased person or the deceased person’s family . . . for   ibid [5.13].   Law Commission, Intestacy and Family Provision Claims on Death (n 18) [6.11]–[6.26]. 466   See section 3.3 above. 467   Jurd v Public Trustee [2001] NSWSC 632 [53] (Master Macready). 468   Unger v Sanchez (n 105) [100] (Kaye J). 464 465

202  Family Provision which adequate consideration (not including any pension or other benefit) was not received . . . by the applicant’. In Hughes v Charlton, decided under the 1982 Act, Maccready J accepted that the applicant’s claim had to be ‘seen in the light of her relationship with the deceased which was in effect as his housekeeper and later when he was ill as his personal carer’.469 He nevertheless refused to accept that this warranted any more than the life interest in the deceased’s house, the motor vehicle and the $5,000 legacy that the care recipient had left to her. 5.4.11  The Potential Need for a Fundamental Change The New South Wales experience demonstrates that if it is decided fully to reward, encourage, support or compensate informal carers using the Inheritance (Provision for Family and Dependants) Act 1975, it is likely to be insufficient simply to add a ‘carer’ category to the potential list of applicants. The difficulty in providing for carers is not simply caused by the fact that some of them are ineligible, since it is unclear that care is given significant weight even where it is provided by an applicant who is eligible by virtue of some other relationship with the deceased. If care in itself is to be recognised under family provision law, the Act itself must extend beyond the recognition of financial dependency on the part of applicants, and an approach that genuinely recognises benefits conferred in the past must be adopted. It has been recognised throughout this section that care frequently generates needs. It is this very fact that often causes the interests of informal carers to be championed, and those carers are indeed the most worthy of support through succession law. Moreover, remuneration for care in the absence of need risks prejudicing the interests of those who are genuinely in need of provision, and Wells has expressed the fear that ‘[i]f the financial relief were to be assessed on some other basis, such as the provision of services regardless of need, this could distort the existing legislation’.470 That said, if succession law is to fulfil the encouragement function envisaged by Oldham’s notion of ‘successional priority’, consideration must be given to the specific recognition of care provided by applicants who now have the potential to support themselves. This argument derives some support from the decision of the Supreme Court of New South Wales in Palagiano v Mankarios, where the testator’s entire estate was left to his daughter and his two sons brought family provision claims (as well as an unsuccessful estoppel claim).471 White J held that:

469 470 471

  Hughes v Charlton (n 254) [73].   Wells, ‘Testamentary Promises: A New Approach’ (n 263) 322.   Palagiano v Mankarios (n 61).



5.5 Conclusion 203 Due to the care which [the daughter] provided to both her parents, her claim on [her father’s] estate is substantially greater than the claim of either [of her brothers]. That is so notwithstanding that she does not profess any financial need.472

At the same time, the judge held that ‘her claim on the estate . . . is not so compelling that a wise and just testator would make no provision for his sons’.473 Family provision orders were therefore made in favour of the sons. This balanced approach between those who provide care and cannot demonstrate need and those who do not provide care but have need has much to commend it. Such an approach is not currently enshrined in the English 1975 Act. 5.5 CONCLUSION

This chapter has suggested that since society is content to interfere with testamentary freedom to provide for certain individuals with a connection to the deceased, ‘pure’ carers should in principle be eligible for discretionary provision from a care recipient’s estate. This is true at least where such provision would not cause undue hardship to those who were genuinely dependent on the deceased. If the main argument is considered unconvincing, it has been suggested that care provided should at least not prejudice the applications of those who would otherwise be eligible under the English Inheritance (Provision for Family and Dependants) Act. Such prejudice, it has been shown, is still possible against carers who try to bring a claim as a dependant of the deceased. While the position of the conjugal cohabitant under English family provision law has been improved by the introduction of a specific category to provide for him in the event of his partner’s death, many difficulties are still faced by the ‘pure’ carer. The courts have attempted to respond flexibly in their application of section 1(1)(e) of the Act, which covers dependants, but at least as long as care services are allowed to constitute valuable consideration in principle, pure carers will have difficulty in bringing a claim. Despite the harsh and unjust results sometimes produced, this could be justifiable from the point of view of statutory interpretation. While it is undesirable to add up all the intangible things that someone has done for the deceased and use them as reasons against his being provided for out of the estate, there is certainly something counterintuitive about finding that a carer is dependent on a care recipient. Although this could be resolved using the argument that carer and care recipient are in fact interdependent, a new category of applicant is likely to be necessary. 472 473

  ibid [72]. See also Lajcarova v Todorov [2011] NSWSC 522.   Palagiano v Mankarios (n 61) [72].

204  Family Provision The need for a new category is reinforced by the difficulties that the carer is likely to face in bringing a claim as a cohabitant. This is due to the largely inevitable focus on the need for a publicly acknowledged sexual relationship in the case law decided under section 1(1)(ba). An example of a ‘carer’ category, the concept of the ‘close personal relationship’ from New South Wales, has been described and evaluated. This chapter has acknowledged that provision for carers will require the use of concepts that are difficult to define, but it has also demonstrated the difficulties with the English Law Commission’s recent arguments against provision for carers. Such provision may require a fundamental change in the philosophy behind the 1975 Act but, as demonstrated by the New South Wales experience itself, these difficulties are not insurmountable. Even where an applicant is eligible by virtue of a familial or other relationship with the deceased, it seems that care provided by that applicant is sometimes given little specific recognition under the 1975 Act, at least where it does not generate a need for future maintenance. The same can be said even in New South Wales, notwithstanding the specific recognition of care relationships in that jurisdiction’s law of family provision. Many carers will have such a need, and the justification for a remedial mechanism is strongest where this need is present. Nevertheless, others will cease to have a need for maintenance precisely because the care recipient has passed away. Moreover, broad principles of unjust enrichment suggest that relief should not be limited to cases of future need.474 As described in section 3.3, the New Zealand Law Commission used more specialised versions of those principles cogently to propose the enablement of a claim by a ‘contributor’ even where he might have difficulty in citing a promise, a need for maintenance or even compensable loss, and indeed several of the Canadian unjust enrichment cases considered in section 4.5 above were brought by carers against an estate. During the debates leading up to the passage of the 1975 Act, the Lord Chancellor, Lord Elwyn-Jones, proclaimed that it was designed to protect the interests of the ‘devoted and willing slave’ for whom no provision had been made out of his charge’s estate.475 Political incorrectness aside, it would be difficult to find a more apt description for many informal carers. Even more pertinently, the Lord Chancellor also considered ‘a distant relative, or a non-relative who . . . looked after the deceased for years . . . without reward’ to be within the parameters of the Act.476 Admittedly, 474   See, eg G Virgo, Principles of the Law of Restitution , 2nd edn (Oxford, Oxford University Press, 2006) 8–9 on the distinction between the ‘descriptive’ and ‘substantive’ senses of unjust enrichment. 475   HL Deb 20 March 1975, vol 358, col 936. 476   HL Deb 20 March 1975, vol 358, col 920.



5.5 Conclusion 205

however, he added the heavy qualification that the applicant in such a situation must have ‘become financially dependent upon’ the deceased.477 Whatever the intentions of the parliamentarians who passed it, the Act as judicially interpreted will fail to provide for many ‘devoted and willing slaves’ because of its focus on the dependency of the applicant. To an extent, this contrasts with the New South Wales model, and it is arguable that the discrepancy ought to be remedied through the creation of a ‘carer’ category, using a similar definition to that present in the 2006 Act, and the recognition of care provided by eligible applicants. It will often be difficult for the courts to make judgments about the fine details of the relationship between the care recipient and the deceased. Some will consider such enquiries to be undesirable, particularly in the light of the judicial reluctance to consider conduct and contribution in the context of ancillary relief. Nevertheless, judges have shown willingness to consider the precise nature of the relationship between the parties where this could be prejudicial to a carer’s interests in the early case law on ‘full valuable consideration’ and in more recent cases on whether an applicant is living as a spouse or civil partner. Perhaps they should be equally willing to do so for the benefit of carers. The next chapter switches the focus from statutory remedies on the death of the care recipient to inter vivos statutory claims by carers facilitated by broad-based recognition of caring relationships.

477

 ibid.

6 Inter Vivos Provision on the Breakdown of Caring Relationships

T

6.1 INTRODUCTION

HIS CHAPTER BRIEFLY considers statutory mechanisms of redistributing the property of carer and care recipient where the relationship between them breaks down while both parties are still alive. Such mechanisms are likely to be facilitated by a broad-based recognition of interdependent or caring relationships, as distinct from conjugal ones. The chapter contrasts the paucity of such provision in England and Wales (considered in section 6.2) with the increasing recognition of care relationships in some Australian jurisdictions (analysed in section 6.3). In doing so, it discusses the relative merits and demerits of inter vivos remedies addressing unconscionability of outcome as compared to remedies utilising succession law, which were considered in the previous chapter. 6.2  THE POSITION IN ENGLAND AND WALES

6.2.1  The Views of the English Law Commission on Eligibility As things stand in England and Wales, only married couples and civil partners are eligible for wide-ranging statutory redistribution of property upon the breakdown of an adult relationship for reasons other than death.1 This redistribution is effected by the Matrimonial Causes Act 1973, and the relevance of care under that Act was considered in the context of English family provision’s ‘divorce analogy’ in section 5.4.5.1 above. A caring spouse or civil partner could find it even more difficult to have care recognised through an inter vivos claim, since the care recipient is likely to have needs that she can realistically seek to have met in the course of redistributing the parties’ assets. Disability is expressly included as a 1   Child support has a very limited role once a child reaches 18: see, eg J Masson, R BaileyHarris and R Probert, Cretney’s Principles of Family Law; 8th edn (London, Sweet & Maxwell, 2008) [15-032].



6.2  The Position in England and Wales 207

relevant consideration in section 25 of the 1973 Act,2 and Lord Nicholls recognised in Miller; McFarlane that not all needs arise as a result of the parties’ relationship.3 Outside the marital and civil partnership context in England and Wales, parties to personal relationships are infamously reliant on the standard rules of property law and the equitable doctrines considered in chapter two as regards the inter vivos redistribution of their property on relationship breakdown. In 2002, the Law Commission of England and Wales published a Discussion Paper on the property rights of home-sharers.4 The Commission included carers within their discussion. In doing so, they expressed concern that claims by carers would be treated differently depending on whether they lived with care recipients (in which case they would be covered under any proposed statutory scheme) or lived independently (as a result of which they would have to bring a claim under the general law). In the Commission’s view it was undesirable for such a distinction to be maintained because (at least in some scenarios) ‘the link between the services provided (the caring) and the home is tenuous’.5 They therefore concluded that: ‘In so far as the claim [under any proposed scheme] is for the cost of caring (and that surely is what it is) it should be irrelevant that the carer is living in.’6 This relates to the New South Wales Law Reform Commission’s desire to remove the requirement that parties wishing to benefit from ‘close personal relationship’ status must live together.7 In any event, the English Law Commission’s Discussion Paper concluded that: ‘It is not possible . . . to devise a statutory scheme for the ascertainment and quantification of beneficial interests in the shared home which can operate fairly and evenly across the diversity of domestic circumstances which are now to be encountered.’8 As a result, when the Commission came to propose a statutory scheme for the financial consequences of relationship breakdown, carers were excluded from the remit of the project.9 The scope for recognition of care provided by an eligible conjugal cohabitant under the proposed scheme was discussed in section 5.4.7. The Law Society expressed similar concerns about over-inclusiveness when proposing reform for cohabitants, and also concluded that ‘no one   Matrimonial Causes Act 1973, s 25(2)(f).   Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 [11] (Lord Nicholls); cf [37] (Lady Hale). 4   Law Commission, Sharing Homes: A Discussion Paper (Law Com No 278, 2002). 5   ibid [3.84]. 6   ibid [3.84]; cf the Commission’s more recent rejection of the specific inclusion of carers in family provision law, discussed in section 5.3.5 above. 7   See section 5.3.4.2 above. 8   Law Commission, Sharing Homes: A Discussion Paper (n 4) 85. 9   Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown. A Consultation Paper (Law Com No 307, 2007) [9.136]. 2 3

208  Inter Vivos Provision definition would enable the courts to establish with certainty what was or was not an interdependent relationship’ if the scope of a proposed scheme extended beyond couples.10 The recently enacted opt-out scheme for cohabitants in Ireland follows this trend. For the purposes of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, a ‘cohabitant’ is defined as: ‘one of 2 [sic] adults . . . who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship’.11 A checklist approach is adopted to help determine whether the definition is satisfied,12 and ‘the degree to which the adults present themselves to others as a couple’ is articulated as a relevant factor.13 While the Act expressly states that ‘a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature’,14 there is a clear expectation that a qualifying relationship will have involved sexual relations at some point.15 Indeed, it is probable that this subsection has a similar basis to Neuberger J’s analysis in Re Watson (decd), discussed in section 5.3.3.1 above. On the other hand, Wong has argued that there is ‘no logical reason to limit access to the law to only couple-based relationships’.16 Nicola Barker, moreover, opined that the English Law Commission missed an important opportunity by ‘opting to reinforce the primacy of the conjugal (marriage) model’.17 The divergence between these opinions and those of the Law Commission is at the heart of this chapter. As section 6.2.2 shows, the Law Commission’s conclusion is reflected in other areas of English law.

  Law Society, Cohabitation: The Case for Clear Law (London, 2002) [41].   Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Ireland), s 172(1). 12   Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Ireland), s 172(2). 13   Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Ireland), s 172(2)(g). 14   Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Ireland), s 172(3). 15  See B Sloan, ‘The Concept of Coupledom in Succession Law’ [2011] Cambridge Law Journal 623 for discussion. 16   S Wong, ‘Caring and Sharing: Interdependence as a Basis for Property Redistribution’ in A Bottomley and S Wong (eds), Changing Contours of Domestic Life, Family and Law: Caring and Sharing (Oxford, Hart Publishing, 2009) 54. cf S Wong, ‘Shared Commitment, Interdependency and Property Relations: A Socio-legal Project for Cohabitation’ (2012) 24 Child and Family Law Quarterly 60, 74–75. 17   N Barker, ‘Sex and the Civil Partnership Act: The Future of (Non) Conjugality?’ (2006) 14 Feminist Legal Studies 241, 256. 10 11



6.2  The Position in England and Wales 209

6.2.2  The Centrality of Conjugality in English Law The importance of sexual relationship in the definition of a qualifying cohabitation relationship in family provision law was discussed in chapter five. English law reflects a reluctance to move ‘beyond conjugality’18 as far as the recognition of interdependent relationships is concerned, and many of these relationships will involve the sort of care which forms the topic of this book. This is shown, for example, in the case law on succession to statutory tenancies, now of mainly historical interest.19 As Alison Diduck puts it, ‘monogamous conjugality, current, past or merely potential, is still central to the definition of family’.20 Often, English law is in Fineman’s words, ‘duplicating the privileged form’ even when recognising non-marital relationships.21 Of course, substantial care is frequently present within conjugal or ‘marriage-like’ relationships. A willingness to attach rights and remedies to non-conjugal relationships might nevertheless be said to indicate the extent to which a relationship is recognised because of the care provided rather than because of its resemblance to a vision of a particular relationship status. This is related to the feminist literature on care considered in chapter one. The case of the Burden sisters could be said to symbolise the centrality of marriage-like relationships in English law. These elderly sisters lived together in a mutually supportive and economically interdependent relationship for over 30 years. Fearing that when one of them died, the other would have to sell their house in order to pay the inheritance tax bill, they sought to challenge the fact that they could not benefit from the inheritance tax exemption granted to married couples and civil partners because they were within the prohibited degrees of relationship and could not enter a civil partnership.22 Their claim, based on Article 14 and Article 1 of 18   This phrase is taken from Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001). See L Glennon, ‘Displacing the Conjugal Family in Legal Policy – A Progressive Move?’ (2005) 17 Child and Family Law Quarterly 141, 152–56 for discussion and criticism of that report. For a discussion of the extent to which a ‘conjugal’ relationship and a ‘sexual’ relationship are synonymous, see B Cossman and B Ryder, ‘What is Marriage-Like Like? The Irrelevance of Conjugality’ (2001) 18 Canadian Journal of Family Law 269. 19   See, eg Joram Developments v Sharratt [1979] 1 WLR 928 (HL); Ross v Collins [1964] 1 WLR 425 (CA). cf the position in Scotland, where a ‘carer providing, or who has provided, care for the tenant or a member of the tenant’s family’ is a ‘qualified person’ for the purposes of succession to a secure tenancy provided he is over 16, the relevant house was the carer’s only or principal home at the time of the tenant’s death and he gave up his pre-existing home: Housing (Scotland) Act 2001, s 22 and sch 3. 20   A Diduck, ‘Shifting Familiarity’ (2005) 58 Current Legal Problems 235, 238. 21   MA Fineman, The Neutered Mother, the Sexual Family and other Twentieth Century Tragedies (New York, Routledge, 1995) 143. 22   Inheritance Tax Act 1984, s 18.

210  Inter Vivos Provision the First Protocol of the European Convention on Human Rights, was dismissed by both the Chamber23 and the Grand Chamber24 of the European Court of Human Rights. Commenting on the Burden case, Shazia Choudhry and Jonathan Herring note that ‘two people living together in a sexual relationship [per se] are not providing any particular benefit to the rest of society’,25 and Deech points out that ‘sexual activity itself does not cause dependency’.26 By contrast, Cretney has argued in favour of an admission that sexual relationships in themselves are the targets of regulation.27 Of course, ‘pure’ carers and care recipients are free to enter a marriage or civil partnership (provided they do not fall within the prohibited degrees of relationship in respect of each other). They would not be required to procreate,28 and a lack of consummation renders a marriage voidable at worst29 and does not apply to a civil partnership.30 Indeed, the Burden sisters told the Grand Chamber that they would have become civil partners had the choice been open to them.31 On the other hand, people living in a non-conjugal relationship of interdependency and care may well be less likely for cultural reasons to avail themselves of the option of marriage or civil partnerships than previously unmarried conjugal cohabitants. Choudhry and Herring therefore discuss an ‘alternative vision’ based on a ‘carer-dependant’ paradigm, albeit admitting that it would produce ‘a very different kind of family law’.32 The issue of recognising non-conjugal or caring relationships was raised in the House of Lords debate on the Civil Partnership Bill, which when subsequently enacted provided a legal institution almost identical to marriage for same-sex couples. A proposal was made such that two people within the prohibited degrees who had lived together for 12 years could enter a civil partnership, provided they were both aged over 30 and neither was married or in an existing civil partnership.33 This was widely 23   Burden v United Kingdom App no 13378/05 [2007] 1 FCR 69 (European Court of Human Rights). See B Sloan, ‘The Burden of Inheritance Tax’ [2007] Cambridge Student Law Review 114. 24   Burden v United Kingdom App no 13378/05 [2008] 2 FLR 787 (Grand Chamber of the European Court of Human Rights). See B Sloan, ‘The Benefits of Conjugality and the Burdens of Consangunity’ [2008] Cambridge Law Journal 484. 25  S Choudhry and J Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010) 426. 26   R Deech, ‘Sisters Sisters – and Other Family Members’ [2010] Family Law 375, 377. 27   S Cretney, ‘Comment – Sex is Important’ [2004] Family Law 777. See also N Bala and RJ Bromwich, ‘Context and inclusivity in Canada’s evolving definition of the family’ [2002] International Journal of Law, Policy and the Family 145 but cf J Eekelaar, Family Law and Personal Life (Oxford, Oxford University Press, 2007) 49–51. 28   Baxter v Baxter [1948] AC 274 (HL). 29   Matrimonial Causes Act 1973, s 12(a)–(b). 30   cf Government Equalities Office, Equal Civil Marriage: A Consultation (Government Equalities Office, 2012) [2.16]. 31   Burden v United Kingdom (n 24) [53]. 32   Choudhury and Herring, European Human Rights and Family Law (n 25) 426. 33   HL Deb 24 June 2004, vol 422, cols 1363–89.



6.3  The Approach in Australia 211

perceived as a ‘wrecking amendment’,34 and critics argued that civil partnership was not the appropriate mechanism through which to provide benefits for carers.35 As illustrated by the Burden case, the Bill was subsequently enacted with the prohibited degrees intact, although consummation and adultery are formally irrelevant to the legal concept of civil partnership.36 Belgium provides an interesting contrast, since family members there are able to enter a form of ‘statutory cohabitation’ by registration, which provides access to a range of benefits.37 It seems unlikely that systematic recognition of care relationships, facilitating inter vivos redistribution of property, will occur in the near future in England and Wales, not least because many would see the increased recognition of unmarried (conjugal) cohabitation as a priority. As outlined in section 6.3, however, relationships characterised by care or dependency have been recognised in some parts of Australia for many years. 6.3  THE APPROACH IN AUSTRALIA

On Wong’s account, the Australian Capital Territory’s Domestic Relationships Act 1994 was ‘the first sub-national legislation to shift the focus of domestic relationships from status to interdependency’.38 As well as applying to cohabiting couples,39 it also included non-couple relationships where care and support was present.40 Other Australian states and territories have similarly gone further than England and Wales by specifically recognising the relationship between carer and care recipient on a basis similar to that between conjugal couples (married or unmarried),41 and some of these models are discussed in the following subsections.   See, eg Cretney, ‘Comment – Sex is Important’ (n 27).  Glennon, ‘Displacing the Conjugal Family in Legal Policy – A Progressive Move?’ (n 18). 36   See, eg Barker, ‘Sex and the Civil Partnership Act: The Future of (Non) Conjugality?’ (n 17). 37  See I Curry-Sumner, All’s Well that Ends Registered? The Substantive and Private International Law Aspects of Non-Marital Registered Relationships in Europe (Antwerp, Intersentia, 2005) ch 3 for a (now dated) discussion. 38   Wong, ‘Caring and Sharing: Interdependence as a Basis for Property Redistribution’ (n 16) 53. 39   The Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Aus) has now federalised much of the law relating to property and maintenance affairs of de facto (conjugal) couples. See, generally, H Baker, ‘In Practice: New Cohabitation Law in Australia’ [2009] Family Law 1201; Kneen v Crockford [2011] FMCAfam 372 [9] (Lindsay FM). The Act does not purport to cover the categories of carer relationship discussed in this section: see G Watts, ‘The De Facto Relationships Legislation’ (2009) 23 Australian Journal of Family Law 122, 135. Relationships ending by death are also excluded from its scope (Watts, ‘The De facto Relationships Legislation’ 135). 40   Domestic Relationships Act 1994 Act (ACT), s 3. 41   For a summary of the recognition of ‘domestic relationships’ across the various states and territories, see B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (Melbourne, Oxford University Press, 2008), 138–41. However, their account is already out of date: see, eg the Relationships Amendment (Caring Relationships) Act 2009 (Vic). 34 35

212  Inter Vivos Provision 6.3.1  The Recognition of Caring Relationships in New South Wales Various rights were attached to ‘domestic relationships’ in New South Wales in 1999. The concept of a ‘domestic relationship’ includes not only a de facto (sexual) relationship but also a ‘close personal relationship’.42 As discussed in chapter five, such relationships must involve ‘domestic support’ and ‘personal care’, and they are open even to people with existing familial relationships. As well as bringing a family provision claim, parties to ‘close personal relationships’ in New South Wales can secure orders to redistribute property if the relationship breaks down while both parties are still alive, since the 1999 Act expanded the scope of the existing provision for de facto couples to all ‘domestic relationships’.43 De facto couples in New South Wales have become subject to federal legislation,44 but the Property (Relationships) Act 1984 will still regulate ‘close personal relationships’. Parties to ‘close personal relationships’ can apply (usually within two years of the termination of the relationship)45 for ‘financial adjustment’,46 although they can also opt out of the amended 1984 Act by agreement.47 Generally, the parties must have lived together for two years, although there are exceptions to this rule.48 Financial adjustment can comprise the adjustment of proprietary interests49 and exceptionally maintenance.50 The court may make such an order ‘as to it seems just and equitable’.51 In doing so, it will have regard to, inter alia, any ‘contributions . . . made by either of the parties to the relationship to the welfare of the other party to the relationship’,52 and the inclusion of ‘close personal relationships’ with the scheme has been said not to ‘mandate any different approach in evaluating the contributions of the parties to a close personal relationship as distinct from those to a de facto relationship’.53 Even so, the Law Reform Commission have expressed concern that the current framework fails to take adequate account of the future needs of parties to close personal relationships.54   Property (Relationships) Act 1984 (NSW), s 5(1).  See New South Wales Law Commission, Relationships (Report No 113, 2006) [3.26]– [3.35] for discussion. 44   Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Aus), which commenced on 1 March 2009. See also Commonwealth Powers (De facto Relationships) Act 2003 (NSW). 45   Property (Relationships) Act 1984 (NSW), s 18. 46   Property (Relationships) Act 1984 (NSW), part 3. 47   Property (Relationships) Act 1984 (NSW), part 3, division 4. 48   Property (Relationships) Act 1984 (NSW), s 17. 49   Property (Relationships) Act 1984 (NSW), part 3, division 2. 50   Property (Relationships) Act 1984 (NSW), part 3, division 3. 51   Property (Relationships) Act 1984 (NSW), s 20(1). 52   Property (Relationships) Act 1984 (NSW), s 20(1)(b). 53   Burgess v Moss [2010] NSWCA 139, [2010] ALMD 6473 [9] (Brereton J). 54   New South Wales Law Reform Commission, Relationships (n 43) [7.67]. 42 43



6.3  The Approach in Australia 213

In spite of these inter vivos remedies, according to the Law Reform Commission: ‘In most cases, such relationships are likely to end with the death of the person being cared for, in which case the person who has taken care of the other may have recourse against the estate if they feel they were not adequately provided for.’55 Hayes v Marquis,56 the New South Wales Court of Appeal decision discussed in chapter five, involved an inter vivos claim in which the parties were held to be in a ‘close personal relationship’. Nevertheless, it is significant that the relationship later met the criteria for a ‘de facto’ relationship.57 The apparent rarity of inter vivos claims in genuine care situations, even where such claims are available, adds weight to the appropriateness of family provision law in providing a remedy for carers. The specific advantages of succession law cannot be applied to inter vivos provision, not least because the care recipient still has need of her property and the parties do not necessarily expect their property to be regulated in such a way while they are still alive. In this regard, it is significant that a much wider range of persons are able to make a statutory claim against the estate in England and Wales as compared to those who can seek inter vivos redistribution. Moreover, Susan Boyd and Claire Young express concern that the recognition of a variety of relationships can cause governments to ‘offload responsibility onto those private relationships, resulting in more expectations being made of those relationships in terms of taking care of “their own”’,58 although given the disadvantages currently suffered by carers it is hard to believe that they would be worse off following relationship recognition. An approach based on family provision is therefore a preferable remedy for dealing with unconscionability of outcome, even if an inter vivos solution has the potential advantage of remedying the detriment suffered by the carer at an earlier stage. 6.3.2  Registration Schemes The Relationships Act 2003 (Tasmania) provides an alternative model with its concept of ‘caring relationships’.59 These are defined using similar terms to the New South Wales ‘close personal relationships’, but with a non-exhaustive checklist to aid in determining whether a ‘caring relationship’ exists.60 The Act similarly enables those in caring relationships to apply for property adjustment and maintenance on the breakdown of   ibid [3.22].   Hayes v Marquis [2008] NSWCA 10, [2008] ALMD 5421.   See also Burgess v Moss (n 53). 58   SB Boyd and CFL Young, ‘“From Same-Sex to No Sex”?: Trends Towards Recognition of (Same-Sex) Relationships in Canada’ (2003) 1 Seattle Journal for Social Justice 757, 784. 59   Relationships Act 2003 (Tas), s 5. 60   Relationships Act 2003 (Tas), s 5(5). 55 56 57

214  Inter Vivos Provision their relationships,61 although Belinda Fehlberg and Juliet Behrens note that the basis of redistribution is broader in Tasmania than in New South Wales.62 Caring relationships can be registered in Tasmania.63 Registration is conclusive as regards the existence of the relationship,64 eliminating the need to resort to the checklist. The registration of a relationship also permits access to a wider range of benefits than if it is unregistered, and still more benefits remain reserved for registered couples in a conjugal relationship.65 Nevertheless, contrary to the view of Millbank,66 it seems that even a party to an unregistered caring relationship can make an application for the redistribution of property,67 subject to a two-year minimum duration requirement,68 the existence of a child of the relationship or the presence of ‘serious injustice’ following substantial contributions if an order is not made.69 Independent legal advice is required before registration can occur,70 and it must relate to both ‘the effect of the registration . . . on the rights of the parties’71 and ‘the advantages and disadvantages, at the time that the advice was provided, to the party of registering a deed of relationship’.72 A considerable limitation is that the parties will not be able to register unless each of them can declare that he is unmarried and not a party to a ‘significant’ (that is, de facto conjugal) relationship or another ‘caring’ relationship, whether registered or unregistered.73 In the first three years of the operation of the Tasmanian Act, no ‘caring relationships’ were registered,74 although Rundle records four such regis  Relationships Act 2003 (Tas), part 5.   Fehlberg and Behrens, Australian Family Law: The Contemporary Context (n 41) 589. 63   Relationships Act 2003 (Tas), s 11. 64   Relationships Act 2003 (Tas), s 5(4). 65  R Graycar and J Millbank, ‘From Functional Family to Spinster Sisters: Australia’s Distinctive Path to Relationship Recognition’ (2007) 24 Washington University Journal of Law and Policy 121, 149. 66   J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law – Part One: Couples’ (2006) 34 Federal Law Review 1, 29. 67   According to s 36(1), a ‘partner’ can make such an application. A partner is defined in s 2 as ‘a person who is or has been in a personal relationship’. A ‘personal relationship’, in turn, includes a ‘caring relationship’ according to s 6. There is no apparent requirement of registration in any of these particular definitions. 68   Relationships Act 2003 (Tas), s 37(1). 69   Relationships Act 2003 (Tas), s 37(2). These limitations do not apply if the relationship is registered: s 37(3). 70   Relationships Act 2003 (Tas), s 11(3). 71   Relationships Act 2003 (Tas), 11(3)(a). 72   Relationships Act 2003 (Tas), s 11(3)(b). See O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121, 139 for criticism. 73   Relationships Act 2003 (Tas), s 11(2)(a). 74   Graycar and Millbank, ‘From Functional Family to Spinster Sisters: Australia’s Distinctive Path to Relationship Recognition’ (n 65) 149–50. 61 62



6.4 Conclusion 215

trations by 2011.75 Graycar and Millbank suggest that the limited take-up could indicate the redundancy of the provisions, and claim that there is ‘no empirical evidence to demonstrate an unmet legal need for any broadly-based recognition of non-couple relationships’.76 On the other hand, they also admit that lack of public information could be a factor,77 and many of the general problems with opt-in schemes for unmarried cohabitants are likely to apply in this context78 alongside the inherent informality of large numbers of caring relationships. The Tasmanian experience did not prevent Victoria from enacting a similar registration scheme in 2009.79 The Victorian legislation allows applications for adjustment or maintenance by registered ‘caring partners’ but not unregistered ones.80 New South Wales, on the other hand, appears to have excluded ‘close personal relationships’ from its new registration scheme for couples81 in spite of the Law Reform Commission’s recommendations.82 In any case, exclusive registration-based schemes for the recognition of carer relationships compound the general difficulties with inter vivos remedies discussed above,83 and they will inevitably have some similarities with a ‘marital’ paradigm, particularly as regards the ‘breakdown’ of the caring relationship. It may therefore be the case that recognition for particular purposes, such as family provision law, is preferable. 6.4 CONCLUSION

Wide-ranging recognition of care relationships, facilitating inter vivos property redistribution amongst other things, might well benefit some carers. Nevertheless, it must be borne in mind that the Australian schemes considered in this chapter also permit a claim by the care recipient as   Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (n 72) 145.  Graycar and Millbank, ‘From Functional Family to Spinster Sisters: Australia’s Distinctive Path to Relationship Recognition’ (n 65) 153. 77   ibid 150. 78  See, eg Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (n 9) [2.82]–[2.94]; JM Scherpe, ‘The Legal Status of Cohabitants – Requirements for Legal Recognition’ in K Boele-Woelki (ed), Common Core and Better Law in European Family Law (Antwerp, Intersentia, 2005) 283–94. 79   Relationships Amendment (Caring Relationships) Act 2009 (Vic), amending Relationships Act 2008 (Vic). 80   Relationships Act 2008 (Vic), ss 39, 41. 81   Relationships Register Act 2010 (NSW). 82   New South Wales Law Reform Commission, Relationships (n 43) 7. 83   See, eg section 5.2. See also Glennon, ‘Displacing the Conjugal Family in Legal Policy – A Progressive Move?’ (n 18) 144–45 for a discussion of such difficulties in the context of the proposed amendment to the Civil Partnership Bill and Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (n 72) for a general discussion of registration schemes. 75 76

216  Inter Vivos Provision against the carer, since they are based upon a concept of interdependence. Moreover, the fact that schemes of property division tend to focus on the breakdown of such relationships means that the carer may still be inadequately protected while the relationship is intact (as many will remain until the care recipient’s death). Since inter vivos remedies raise much more difficult questions about the redistribution of property for the benefit of carers, a succession law approach is likely to be preferred. Whatever precise basis of intervention and quantum of relief is adopted, it is clear that testamentary claims have significant advantages over those available during the lives of the parties.84 Moreover, there is a risk that formal mechanisms of recognition such as the Tasmanian model will undermine equality-based legislation for samesex couples by reducing the legal equivalence of same-sex partnerships and heterosexual marriage. Indeed, Glennon suggests that this is sometimes the intended consequence of such reforms.85 The risk of undermining the recognition of same-sex couples is minimised, however, if schemes for carers and conjugal couples remain conceptually distinct. Although New South Wales experienced similar debates to those in the UK House of Lords on the Civil Partnership Bill,86 the Gay and Lesbian Alliance there subsequently criticised the interpretation given by the courts of the concept of a ‘close personal relationship’ for its narrowness87 and Millbank has recognised the value of arguments based on the ‘functional family’ to the achievement of recognition for same-sex relationships.88 In any event, no general recognition of the relationship between carer and care recipient for the purposes of property division or in similar contexts appears to be forthcoming in England and Wales. Indeed, the recognition of unmarried conjugal couples for the purposes of property division on relationship breakdown, which has existed for decades in other jurisdictions, has proved controversial and difficult enough.89 The final substantive chapter of the book adds a dimension to the discussion beyond unconscionability of dealing and outcome, by considering situations where a beneficial property transfer between carer and care recipient has occurred but is impugned by reason of alleged undue influence.   See, eg section 5.2 above.  Glennon, ‘Displacing the Conjugal Family in Legal Policy – A Progressive Move?’ (n 18). 86  J Millbank and K Sant, ‘A Bride in her Every-day Clothes: Same Sex Relationship Recognition in NSW’ (2000) 22 Sydney Law Review 181, 203–205. 87   New South Wales Law Reform Commission, Relationships (n 43) [3.12]. 88   J Millbank, ‘The Role of “Functional Family” in Same-Sex Family Recognition Trends’ (2008) 20 Child and Family Law Quarterly 155. 89  See, eg Law Commission, ‘Statement on the Government’s response to the Law Commission report “Cohabitation: The Financial Consequences of Relationship Breakdown”’ (6 September 2011). 84 85

7 Undue Influence

T

7.1 INTRODUCTION

HE CONCERN OF this chapter is in many ways the ‘flip side’ of the scenarios analysed elsewhere in the book. As distinct from the question whether a carer should be given a remedy where the care recipient fails to provide one, the chapter examines situations where a grateful care recipient does transfer property inter vivos to an informal carer, or enters into a similarly beneficial transaction with the carer,1 and considers the circumstances in which such transactions are and should be set aside because the carer unduly influenced the care recipient. As Deputy Judge Jeremy Cousins QC emphasised in Murphy v Rayner, ‘where a transaction has been procured by undue influence, it will not be allowed to stand’.2 In the case of an estoppel claim such as the one before him, however, ‘there has been no transaction’, and where circumstances of undue influence are present (as he considered they were in Murphy) no equity in favour of the claimant arises in the first place.3 As with estoppel and several other mechanisms considered elsewhere in this book, however, undue influence proceedings are often initiated by the care recipient’s estate only after she has died. Indeed, if a care recipient is under her carer’s influence to such an extent that she is in principle able to invoke the doctrine it is inherently unlikely that she will do so herself before she dies.4 Judges must therefore undertake a difficult balancing of interests in these potentially ‘classic’ cases of undue influence.5 While much of the recent jurisprudence on undue influence has been 1  In Hewitt v Gardner [2009] NSWSC 1107, the deceased care recipient had transferred her interest in her family home to her daughter, who was her primary carer, for consideration of $1. 2   Murphy v Rayner [2011] EWHC (Ch) 1. 3   ibid [319]. 4   cf, eg Liddle v Cree [2011] EWHC 3294 (Ch). Goodchild v Bradbury [2006] EWCA Civ 1868, [2007] WTLR 463 is an example of a claim conducted by the holder of a power of attorney in respect of the applicant. Johnson v Smith [2010] NSWCA 306 is a case from New South Wales involving the similar concept of a ‘tutor’. Re S [2010] EWHC 2405 (Fam), [2011] WTLR 449 demonstrates the difficult issues of capacity that can arise in determining whether or not undue influence litigation should proceed. 5   D Capper, ‘Unconscionable Bargains and Unconscionable Gifts’ [1996] Conveyancer and Property Lawyer 308, 308.

218  Undue Influence focused on situations where wives stand as surety for their husband’s debts and the effect of the doctrine on third-party creditors,6 there have been a number of cases involving property transfers to carers.7 This chapter begins by examining some of the policy issues surrounding property transfers which benefit informal carers. Section 7.3 then outlines the nature of the undue influence doctrine and its implications for carers, before section 7.4 analyses the application of the elements of presumed undue influence to cases involving care, focusing mainly on English and Australian jurisprudence.8 The chapter’s primary argument is that many care situations will inevitably involve relationships of influence such that undue influence becomes possible, but that it is important to recognise care as an explanation of beneficial transfers that the care recipient’s heirs have a clear interest in setting aside9 so that no presumption of undue influence necessarily arises. 7.2  POLICY ISSUES

On one view, the broad questions of support for care and for carers considered elsewhere in this book are of only indirect relevance to the undue influence doctrine. It could be said that in the paradigm case, the care recipient has ostensibly made a choice to enter a transaction for the benefit of the carer,10 perhaps out of a sense of gratitude or moral obligation, irrespective of whether the carer has a legitimate expectation of a remedy relating to this care. James Edelman and Elise Bant acknowledge that undue influence cases often involve a ‘spontaneous decision on the part of the plaintiff to confer the benefit’.11 In the absence of adequate state support for carers, such individuals should not readily be deprived of the reward that a care recipient has apparently chosen to confer upon them, 6   For a summary, see K Gray and SF Gray, Elements of Land Law, 5th edn (Oxford, Oxford University Press, 2009) [6.2.64]–[6.2.73]. 7   A hybrid scenario, whereby a care recipient stands surety for her carer’s debts, is considered in FR Burns, ‘Protecting Elders: Regulating Intergenerationally Transmitted Debt in Australia’ (2005) 28 International Journal of Law and Psychiatry 300. 8   The leading English case of Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 appears to have been approved in New Zealand: see Hogan v Commercial Factors Ltd [2006] 3 NZLR 618 (CA); Sexton v Titiro Trustee Co Ltd [2008] NZHC 715 [58] (Heath J). cf MH Ogilvie, ‘The Reception of Etridge (No 2) in Canada’ [2008] Journal of Business Law 191. 9   See, generally P Vines, ‘Challenging the Testator’s Mind by Challenging Lifetime Transactions: Bridgewater v Leahy as Backdoor Probate Law?’ (2003) 10 Australian Property Law Journal 53. In Hewitt v Gardner (n 1), for example, probate had not even been sought on the deceased’s will since it was only after the success of an undue influence claim that the estate comprised any real assets. 10   Western v Male [2011] SASC 75 involved anticipated undue influence in respect of future transactions involving a carer as well as some that had previously taken place. 11   J Edelman and E Bant, Unjust Enrichment in Australia, 2nd edn (Melbourne, Oxford University Press, 2006) 223.



7.3  Undue Influence and Informal Carers 219

whatever the views and motivations of the care recipient’s heirs. The carer has no need to circumvent the ‘risk-taking’ and similar arguments that would arise were he to assert (for example) that the care recipient was unjustly enriched by a benefit for which she had not contracted.12 Nevertheless, the fact that the care recipient has entered the transaction brings its own difficulties. Arguably the very aim of undue influence and related doctrines is to vitiate transactions that have not truly been entered voluntarily, and here it is the carer who may have been unjustly enriched. In evaluating the operation of undue influence, the potential for elder abuse must be recognised,13 and the undue influence doctrine performs an important protective function for vulnerable people. Even in a nineteenth-century case, it was said that there was ‘no branch of the jurisdiction of the Court of Chancery which it is more ready to exercise than that which protects infants and persons in a situation of dependence, as it were, upon others, from being imposed upon by those upon whom they are so depend[e]nt’.14 Moreover, the wider policy debate on care funding affects the operation of undue influence. The courts have been particularly willing to intervene where the sheer magnitude of the property transfer under scrutiny would have prevented a care recipient who was able to remain in her own home at the time of the transfer (often due to the support of the carer) from funding formal residential care had the need arisen.15 Judges are therefore presented with the difficult task of balancing interests in cases where the care could have been an altruistic endeavour or ‘just the bait in order to secure the transaction’.16 The following sections examine the substantive law with these policy questions in mind. 7.3  UNDUE INFLUENCE AND INFORMAL CARERS

Consistently with the rest of the book, this chapter does not focus on situations where the dealings between the parties are sufficiently formal to permit conclusions that that the care itself is provided under a contract and the beneficial transaction is direct consideration for the care.17 Rather, its concern is the situation where the care is provided informally and perhaps seemingly gratuitously, but where a transfer that is not consideration for the care in a contractual sense can potentially be set aside on the   See, eg section 4.3 above.   J Herring, Older People in Law and Society (Oxford, Oxford University Press, 2009) ch 5. See, eg RCW Hall, RCW Hall and MJ Chapman, ‘Exploitation of the Elderly: Undue Influence as a Form of Elder Abuse’ (2005) 13(2) Clinical Geriatrics 28. 14   Smith v Kay [1859] 7 HLC 750, 770–71 (Lord Cranworth). 15   This is discussed in section 7.4.2. 16   Badman v Drake [2008] NSWSC 1366 [75] (Young CJ in Eq). 17   See section 1.4.1 above. 12 13

220  Undue Influence basis of undue influence because of (inter alia) the care relationship between the parties. This section considers some preliminary issues surrounding the undue influence doctrine and their relevance to the informal carer. 7.3.1  The Nature of Undue Influence In spite of relatively recent consideration by the House of Lords in Royal Bank of Scotland v Etridge (No 2),18 it has been said that undue influence ‘can be more easily recognised when found than exhaustively analysed in the abstract’.19 On Lord Nicholls’ account, it exists where one party’s intention to enter a transaction was procured by ‘an unacceptable means’, such that her consent to the transaction ‘ought not fairly to be treated as the expression of a person’s free will’.20 On the other hand, as Salmond J emphasised in Brusewitz v Brown, ‘the mere fact that a transaction is based on an inadequate consideration or is otherwise improvident, unreasonable, or unjust’ does not in itself permit the court to intervene.21 Sir Kim Lewison has more recently written that undue influence is concerned ‘not with folly but with trickery, tyranny and fraud’.22 Where undue influence is present, either because it is proved or presumed, equity will not allow the transaction to stand. Undue influence can be applied to both gifts and contracts, but it has been argued that a gift is more likely to be set aside than a contract because of the need to protect the bargaining process.23 Once the claimant makes out her case, she possesses an equity to set aside the transaction. Undue influence inter vivos is related to several other doctrines. Testamentary undue influence is obviously relevant, although there are legal reasons why an elderly person might wish to transfer property inter vivos rather than by will24 and, as we have seen, at least some care recipients attempt to ‘compensate [their familial carers] on the spot rather than 18   RBS v Etridge (No 2) (n 8). See also Barclays Bank v O’Brien [1994] 1 AC 180 (HL), where the doctrine was discussed but not specifically raised by the appeal. 19   RBS v Etridge (No 2) (n 8) [92] (Lord Clyde). 20   ibid [8]. 21   Brusewitz v Brown [1923] NZLR 1106 (SC) 1109. 22   K Lewison, ‘Under the Influence’ [2011] Restitution Law Review 1, 3. 23   Edelman and Bant, Unjust Enrichment in Australia (n 11) 229–33. In Hoghton v Hoghton (1852) 15 Beav 278, (1852) 51 ER 545 (Ch), Lord Romily effectively opined that the presumption of undue influence arises in the case of gifts even where there is no relationship of influence (298–99). On his view, a finding of undue influence would be made unless the donee proved that the gift was given freely and with full understanding of its nature and consequences on the part of the claimant. This proposition has been branded ‘heresy’ and was confirmed as bad law in Barclays Bank v O’Brien (n 18) 193 (Lord Browne-Wilkinson). 24   See, eg J Martin, ‘Dilemmas For Elderly Donors’ (1998) 10 Child and Family Law Quarterly 339.



7.3  Undue Influence and Informal Carers 221

let them accumulate any advantage and pass it on to them at death’.25 Developed separately by the probate courts, testamentary undue influence is narrower in focus and has much in common with actual undue influence (discussed below) since there is no presumption of testamentary undue influence.26 Pauline Ridge has questioned the cogency of the distinction between the testamentary and inter vivos doctrines, which is an historical accident.27 The doctrine of unconscionable dealing (involving the retention of a benefit received from someone under a special disability) is also pertinent, and James Devenney and Adrian Chandler argue that undue influence is in fact a sub-species of the unconscionable dealing doctrine.28 That said, it is a matter of some doubt in England and Wales whether the latter doctrine applies to gifts,29 and if that doubt is well-placed the doctrine is less relevant to the scenarios under discussion in this book. A transfer between care recipient and carer could also be challenged on other (testamentary) bases such as testamentary incapacity30 or want of knowledge and approval of the contents of a will.31 Undue influence, however, is distinctly relevant to this book because its elements are closely bound up with the very relationship of care rather than simply the dis­ abilities of the care recipient. 7.3.2  Actual and Presumed Undue Influence Undue influence is traditionally divided into actual and presumed undue influence, although in Etridge Lord Clyde doubted the wisdom of the 25   M Izuhara, ‘Negotiating Family Support? The “Generational Contract” between Longterm Care and Inheritance’ (2004) 33 Journal of Social Policy 649, 660. See further section 5.2.3 above. 26   See, eg Gill v Woodall [2009] EWHC 3778 (Ch) [487]–[488] (Deputy James H Allen QC); Hubbard v Scott [2011] EWHC 2750 (Ch), [2012] WTLR 29; Cowderoy v Cranfield [2011] EWHC 1616 (Ch), [2011] WTLR 1699. 27   P Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 Law Quarterly Review 617. See also L Mason, ‘Undue Influence and Testamentary Dispositions: An Equitable Jurisdiction in Probate Law?’ [2011] Conveyancer and Property Lawyer 115; GM Harrison, ‘Undue Influence’ [2010] New Zealand Law Journal 313. cf Vines, ‘Challenging the Testator’s Mind by Challenging Lifetime Transactions: Bridgewater v Leahy as Backdoor Probate Law?’ (n 9) and R Kerridge, ‘Undue Influence and Testamentary Dispositions: A Response’ [2012] Conveyancer and Property Lawyer 129. 28   J Devenney and A Chandler, ‘Unconscionability and the Taxonomy of Undue Influence’ [2007] Journal of Business Law 541. 29   Langton v Langton [1995] 2 FLR 890, 910 (Deputy Judge Charles QC), which was not questioned in Randall v Randall [2004] EWHC 2258 (Ch), [2005] WTLR 119 [94] (Deputy Judge Bartley Jones QC). For criticism, see Capper, ‘Unconscionable Bargains and Unconscionable Gifts’ (n 5). 30   See, eg Blackman v Man [2007] EWHC 3162 (Ch), [2008] WTLR 389. 31   See, eg Perrins v Holland [2010] EWCA Civ 840, [2011] 2 WLR 1086. A carer could also seek to challenge a will made in favour of someone else on grounds such as want of know­ ledge and approval or testamentary incapacity.

222  Undue Influence distinction since it may confuse definition and proof.32 Moreover, Sir Kim Lewison has recently emphasised extra-judicially that the difference between the two is based on the presence or absence of a mere evidential presumption and that they are not separate doctrines.33 Actual (or Class 1) undue influence does not have the benefit of the evidential presumption, and therefore requires proof of ‘overt acts of improper pressure or coercion such as unlawful threats’.34 It bears a resemblance to duress at common law, and Peter Birks and Chin Nyuk Yin argued that actual undue influence should be litigated as duress.35 Presumed undue influence cases, where an evidential presumption can be used, focus on the relationship between the parties to a transaction, rather than their proved conduct, and deal with scenarios where one party has developed ‘a measure of influence, or ascendancy’ over another, and takes ‘unfair advantage’ of his ascendant position.36 In such situations, equity may be willing to assume that undue influence was exerted notwithstanding a failure to prove any of the actions necessary to establish actual undue influence. This chapter primarily concerns presumed undue influence. If proved in a carer case, the effect of actual undue influence is relatively uncontroversial. That doctrine (or aspect of a doctrine, if one subscribes to Sir Kim Lewison’s view) gives rise to fewer conceptual difficulties than presumed undue influence, since it involves proof of the effect of the defendant’s conduct on the mind (and particularly the free will) of the care recipient. It does not depend on the precise nature of the parties’ pre-existing relationship. Actual undue influence has been made out in some ‘carer’ cases. In Morley v Loughnan, an early such case, the defendant Mr Loughnan was originally employed as a travelling companion to Mr Morley.37 Mr Morley suffered from epilepsy, and he took up residence with Mr Loughnan having converted to his closed religious sect. Mr Loughnan was said to be ‘in the habit of giving directions as to what [Mr] Morley should eat’ and ‘frequently visited his bedroom in the morning, and gave him medicine when he felt unwell’.38 Meanwhile, Mr Morley transferred ‘most of his fortune’ to Mr Loughnan.39 No record was kept of those transactions, and Mr Loughnan was reluctant to account for them either before or after   RBS v Etridge (No 2) (n 8) [92].   Lewison, ‘Under the Influence’ (n 22) 4–8.   RBS v Etridge (No 2) (n 8) [8] (Lord Nicholls). 35   PBH Birks and NY Chin, ‘On the Nature of Undue Influence’ in J Beatson and D Friedmann (eds), Good Faith and Fault in Contract Law (Oxford, Clarendon Press, 1995); cf Devenney and Chandler, ‘Unconscionability and the Taxonomy of Undue Influence’ (n 28). 36   RBS v Etridge (No 2) (n 8) [8] (Lord Nicholls). 37   Morley v Loughnan [1893] 1 Ch 736. 38   ibid 742 (Wright J). 39   ibid 751 (Wright J). 32 33 34



7.3  Undue Influence and Informal Carers 223

Mr Morley’s death. Mr Morley’s executors succeeded in having the transfers set aside. Although Mr Loughnan’s actions were originally described by Mr Morley’s father as ‘kind and loving care’,40 Wright J was of the view that ‘the Defendant took possession, so to speak, of the whole life of the deceased, and the gifts were not the result of the deceased’s own free will, but the effect of that influence and domination’.41 The significant point for present purposes is that Wright J considered it unnecessary to decide whether the relationship was of a ‘confidential fiduciary’ nature.42 This suggests that the case was effectively treated as one of actual undue influence, and the defendant could not complain if the ‘most unfavourable inferences’ were drawn.43 Moreover, in Langton v Langton,44 actual undue influence was made out via the carers’ repeated suggestions that the care recipient transfer his property to them, coupled with the care recipient’s fear that they would stop looking after him if he did not execute the gift. While actual undue influence claims against carers have sometimes been successful, difficulties of proof make it more likely that presumed undue influence will be argued.45 One Australian case in which actual undue influence was not found in spite of acts of persuasion on the part of the carer is Urane v Whipper.46 In that case, the defendant had refused to care for her father if he did not contribute towards the purchase of a property for both of them. Windeyer J found that ‘the plaintiff reluctantly accepted what was being arranged, but his will was not overborne’.47 Writing in 2003, Fiona Burns suggested that Australian courts require a higher level of proof of actual undue influence than those in England and Wales.48 She contrasts the cases of Langton and Urane, noting the more generous approach in Langton, but accepts that much may have turned on the relative credibility of the defendants in each case.49 One justification that she puts forward is the availability of unconscionable dealing in Urane, which was thought not to apply to gifts in Langton.50   ibid 753.   ibid 756. 42   ibid 756. 43   ibid 756. 44   Langton v Langton (n 29) 890. 45   Gray and Gray, Elements of Land Law (n 6) [6.2.60]; Smith v Cooper [2010] EWCA Civ 722, [2010] 2 FLR 1521 [58] (Lloyd LJ). See Lewison, ‘Under the Influence’ (n 22) 13–14 for a discussion of the difficult relationship between a finding that no undue influence was exercised and an attempt nevertheless to rely on the presumption of undue influence. 46   Urane v Whipper [2001] NSWSC 796, [2002] NSW Conv R 55-992. 47   ibid [24]. 48   FR Burns, ‘Elders and Undue Influence Inter Vivos: Lessons from the United Kingdom’ (2003) 24 Adelaide Law Review 37, 46. 49   ibid 47. 50   See D Capper, ‘The Unconscionable Bargain in the Common Law World’ (2010) 126 Law Quarterly Review 403 for a comparative analysis of the doctrines. 40 41

224  Undue Influence AJ Duggan has emphasised the evidential value of presumed undue influence, particularly in cases where (as in many carer cases) the complainant is the donor’s estate and a complete picture of the circumstances of the disposition is lacking,51 although the motivations of the estate must be taken into account and it is the very fact that presumed undue influence relies on presumptions based on a relationship (including a care relationship) that renders it controversial. 7.3.3  Claimant- or Defendant-Oriented? One of the great controversies surrounding the nature of undue influence is whether it does (or should) focus primarily on the vulnerability of the claimant or the conduct of the defendant.52 Confusion has been caused on this point by the often-quoted words of Cotton LJ, to the effect that ‘the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused’.53 More fundamentally, Birks blames the ambiguity of the word ‘undue’ itself for the confusion.54 Birks took a claimant-sided approach and argued that the defendant’s conduct was relevant to presumed undue influence only in the sense that: ‘It is unconscientious to retain what ought to be given back.’55 Nelson Enonchong, by apparent contrast, rejects the existence of ‘innocent’ undue influence.56 He nevertheless accepts that no proof of specific wrongdoing is necessary,57 and claimant- and defendant-sided views could be reconcilable.58 In any case, Burns argues that the House of Lords in Etridge avoided choosing between an approach based solely on dependency and one based on victimisation,59 in contrast to Lord Scarman’s adamant view in National Westminster Bank v Morgan that undue influence is based not on vague public policy but victimisation.60 Moreover, Virgo concludes 51   AJ Duggan, ‘Undue Influence’ in P Parkinson (ed), Principles of Equity, 2nd edn (Sydney, Lawbook Co, 2003) [1101]. 52   See, in particular, Birks and Chin, ‘On the Nature of Undue Influence’ (n 35). 53   Allcard v Skinner (1887) 36 Ch D 145 (CA) 171. 54   P Birks, ‘Undue influence as Wrongful Exploitation’ (2004) 120 Law Quarterly Review 34. 55   ibid 37. See Hammond v Osborn [2002] EWCA Civ 885, [2002] WTLR 1125 [31] (Sir Martin Nourse). 56   N Enonchong, Duress, Undue Influence and Unconscionable Dealing (London, Sweet & Maxwell, 2006) [7-006]. 57   ibid [9-004]. 58   Devenney and Chandler, ‘Unconscionability and the Taxonomy of Undue Influence’ (n 28). 59   FR Burns, ‘Undue Influence Inter Vivos and the Elderly’ (2002) 26 Melbourne University Law Review 499, 508. 60   National Westminster Bank v Morgan [1985] AC 686 (HL).



7.4  Applying Presumed Undue Influence 225

that ‘nothing can usefully be gained’ from treating undue influence as either claimant- or defendant-oriented,61 and Mindy Chen-Wishart strongly advocates a relational approach that ‘goes beyond the single factor explanation of a complex phenomenon’.62 Whatever the prevailing academic view, a lack of need to find fault could potentially have consequences for the carer. A claimant-oriented approach could make it more likely that a transfer will be set aside, since care recipients are, almost by definition, vulnerable and courts will readily intervene to protect them if vulnerability is the primary criterion. The courts will evaluate the carer’s conduct in any event, and in the New South Wales Supreme Court case of Badman v Drake it was said that ‘it has almost become a rule of elder law that when one is dealing with an elderly person who is lonely and friendless, a person who befriends her must, if they are to gain a personal benefit, be extremely careful to ensure that there is no unworthy conduct’.63 That said, it is not clear that this doctrinal debate has a significant effect on the outcome of cases,64 not least because presumed undue influence relies on presumptions by its very nature. The next section examines in more detail the application of presumed undue influence to transfers or transactions for the benefit of informal carers.

7.4  APPLYING THE ELEMENTS OF PRESUMED UNDUE INFLUENCE TO CARE CASES

Presumed undue influence is made out if there is a relationship of influence combined with a transaction calling for explanation, and the defendant fails to provide sufficient evidence that the transaction in question was the product of the complainant’s free will. The elements of the doctrine, and their application in care cases, are considered below. It is in the category of presumed undue influence that Burns considered the law in England and Australia to have ‘diverged markedly’.65 She again cited the

61   G Virgo, Principles of the Law of Restitution, 2nd edn (Oxford, Oxford University Press, 2006) 249. 62   M Chen-Wishart, ‘Beyond Impaired Consent and Wrongdoing towards a Relational Analysis’ in A Burrows and A Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (Oxford, Oxford University Press, 2006) 222. See also M Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’ (2006) 59 Current Legal Problems 231. 63   Badman v Drake (n 16) [83] (Young CJ in Eq). 64   L Fox O’Mahony and J Devenney, ‘The Elderly, Their Homes and the Unconscionable Bargain Doctrine’ in M Dixon (ed), Modern Studies in Property Law: Volume 5 (Oxford, Hart Publishing, 2009) 274–78. 65   Burns, ‘Elders and Undue Influence Inter Vivos: Lessons from the United Kingdom’ (n 48) 48.

226  Undue Influence wider availability of unconscionable dealing in Australia as a cause of this.66 7.4.1  Care Generating a Relationship of Influence Presumed undue influence cases have traditionally been sub-divided into two classes, although the House of Lords attempted to abandon the terminology associated with this approach in Etridge.67 In the class often still called Class 2A,68 influence is irrebuttably presumed to exist because the relationship between the parties falls into a pre-recognised category. Sir Kim Lewison describes this as a legal rather than a merely evidential presumption (albeit that he is highly critical of its existence),69 although in Hillston v Bar-Mordecai Bryson J doubted whether the presumption was irrebuttable in Australia.70 In Class 2B, the existence of influence must be proved in order to justify the presumption of undue influence. Lord Scott in Etridge suggested that the strength of the presumption varies according to the nature of the relationship and the nature of the transaction.71 In spite of considerable confusion on the point,72 undue influence is not presumed to have been exercised in either type of Class 2 case merely because of the relationship between the parties in English law. Even in Class 2A, the irrebuttable presumption relates to influence only.73 Where a relevant relationship is found to exist, it must still be shown that the transaction in question ‘calls for explanation’. The list of relationships considered to be within Class 2A includes ‘parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical adviser and patient’,74 as well as spiritual leader and follower,75 with the former party assumed to hold influence over the latter in each instance. Spouses do not fall within the class,76 but (somewhat anomalously) fiancé(e)s may do so.77 66   Johnson v Smith (n 4) is a carer case raising issues of both undue influence and unconscionable dealing. 67   RBS v Etridge (No 2) (n 8) [107] (Lord Clyde); cf E Peel, Treitel on the Law of Contract, 13th edn (London, Sweet & Maxwell, 2011) [10-024]. 68  In Hogg v Hogg [2007] EWHC 2240 (Ch), [2008] WTLR 35, Lindsay J interpreted Etridge as laying down the principle that Class 2A applies only to gifts (42). 69   Lewison, ‘Under the Influence’ (n 22) 8–10. 70   Hillston v Bar-Mordecai [2003] NSWSC 89 [48]. For criticism of the irrebuttable presumption, see Edelman and Bant, Unjust Enrichment in Australia (n 11) 221. 71   RBS v Etridge (No 2) (n 8) [153]. 72   See, eg Niersmans v Pesticcio [2004] EWCA Civ 372, [2004] WTLR 699 [3] (Mummery LJ). 73   R v A-G for England & Wales [2003] UKPC 22, [2003] EMLR 24 [22] (Lord Hoffman). See also Peel, Treitel on the Law of Contract (n 67) [10-022] and Enonchong, Duress, Undue Influence and Unconscionable Dealing (n 56) [10-005]. 74   RBS v Etridge (No 2) (n 8) [18] (Lord Nicholls). 75   Allcard v Skinner (n 53). 76   RBS v Etridge (No 2) (n 8) [19] (Lord Nicholls). 77   See Enonchong, Duress, Undue Influence and Unconscionable Dealing (n 56) [10-016]–[10-020].



7.4  Applying Presumed Undue Influence 227

The 2A relationships could be relevant in cases involving a care situation of sorts, an example being Re CMG involving a transaction between a patient with mental health problems and a hospital board.78 Moreover, in Goldsworthy v Brickell, Nourse LJ attempted to justify the inclusion of doctor and patient within category 2A on the basis that ‘doctors . . . are trusted and confided in by their patients . . . to give them conscientious and disinterested advice on matters which profoundly affect . . . their physical and mental . . . well-being’,79 a role that could be taken on by a carer. Finally, in the New South Wales case of Tredrea v Bailey, it was suggested by Nicholas J that ‘it may be accepted that if the true nature of the relationship at the times of the payments was of carer and patient, any substantial benefit received by the Defendant from the deceased would be presumed to be the result of undue influence’.80 He went on to find that the relationship between the relevant parties should not be characterised as such, and he may have been closer to meaning that such a relationship should be placed within category 2B in any event.81 Overall, in England and Wales at least, it seems that a case is unlikely to be placed in category 2A by virtue of informal care that happens to be provided. Since many informal carers are the adult offspring of the care recipient, it is vital to note that no presumption generally applies where a parent enters into a transaction for the benefit of such offspring.82 Nevertheless, in Hogg v Hogg Lindsay J considered it ‘at least arguable’ that a presumption of influence could arise where ‘the alleged victim is an elderly parent [who] is living alone and is no longer in good health [and] that the child alleged to have influence is the one who, in large part, is responsible for his care’.83 In spite of this remark, it also is unlikely that the law will be developed to include carers within Class 2A. While it seems that the list of relationships falling within that category is not definitively closed,84 the propriety of Class 2A in modern times has rightly been doubted since a donee   Re CMG [1970] Ch 574 (Court of Protection).   Goldsworthy v Brickell [1987] Ch 378 (CA) 404. 80   Tredrea v Bailey [2005] NSWSC 108 [91]. 81   cf Johnson v Smith (n 4) [93] (Young JA). 82   See Burns, ‘Undue Influence Inter Vivos and the Elderly’ (n 59) 509–510 for discussion. Indeed, traditionally the presumption of advancement actively negated the presumption of resulting trust as regards certain transactions between (at least) father and non-emancipated child (see the discussion in section 5.2.2 above). In Johnson v Johnson [2009] NSWSC 503, [2010] ALMD 249, however, Forster J held that as between a mother and her carer adult son, ‘there has been substantial evidence adduced not only to rebut the presumption, but to satisfy me that the influence operated in the opposite direction’ (101). For criticism of the operation of the presumption of advancement and classification as gifts where a parent transfers her home to a child in response to a promise of care in Australia, see S Barkehall Thomas, ‘Parent to Child Transfers: Gift or Resulting Trust?’ (2010) 18 Australian Property Law Journal 75. 83   Hogg v Hogg (n 68) [43]. 84   Enonchong, Duress, Undue Influence and Unconscionable Dealing (n 56) [10-026]–[10-027]; Union Fidelity v Gibson [1971] VR 573, 577 (Gillard J). 78 79

228  Undue Influence falling within it may be ‘compelled to rebut an erroneous presumption’.85 Moreover, in Randall v Randall, the judge refused to treat the relationship between an elderly aunt and a nephew as falling within Class 2A since there was no authority on which he could base such a conclusion.86 In any case, some assertions that the categories of relationship are not fixed could, in fact, refer to the existence of class 2B, rather than the potential for extending class 2A for specific types of relationship.87 The lack of prospects for the inclusion of carers in Class 2A is to be welcomed, partly because of the definitional problems that would inevitably arise. More fundamentally, it is desirable to uphold some transfers for the benefit of carers for the reasons outlined earlier. This renders it preferable to consider each such case on its own facts rather than attempting to place ‘carers’ within category 2A, even if this reduces predictability. This chapter therefore focuses on cases in the traditional category 2B, where the care itself generates the required relationship of influence. Lord Nicholls has noted the inadequacy of attempts to encapsulate the nature of the relevant relationship,88 and the courts have often been deliberately vague in this respect.89 While relationships within category 2B are often said to involve ‘trust and confidence’, that is not synonymous with ‘influence’,90 and merely reposing ‘a degree of trust and confidence in and reliance upon’ a carer is insufficient for undue influence.91 On the other hand, domination of the donor in the usual sense of that word is not required,92 and dependency is clearly an important factor in identifying a relationship of influence. Care recipients are by definition dependent on their carers to a certain extent, and it is significant that this concept is at the heart of much feminist literature on care.93 In Re Morris, for example, the defendants admitted that they were the carers of the deceased transferor.94 Rimer J found that the deceased was ‘wholly dependent’ on the defendants, who ‘suddenly assumed unusual importance in her life’.95 The judge would therefore have set the trans­ 85   Devenney and Chandler, ‘Unconscionability and the Taxonomy of Undue Influence’ (n 28) 557. 86   Randall v Randall (n 29). 87   See, eg Stivactas v Michaletos (No 2) [1994] ANZ Conv R 252 (NSWSC, 31 August 1993). 88   RBS v Etridge (No 2) (n 8) [11]. 89   See, eg Lloyds Bank v Bundy [1975] QB 326 (CA) 341 (Sir Eric Sachs). Ridge impliedly criticises the reluctance of the courts in setting out the criteria for such relationships as promoting uncertainty: P Ridge, ‘Uncertainties Surrounding Undue Influence: Its Formulation, Application and Relationship to other Doctrines’ [2003] New Zealand Law Review 329, 334. 90   Sillett v Meek [2007] EWHC 1169 (Ch), [2009] WTLR 1065 [60] (Deputy Judge Michael Furness QC). 91   Special Trustees for Great Ormond Street Hospital for Children v Rushin, Re Morris (decd) [2001] WTLR 1137 (Ch) [184] (Rimer J). 92   Goldsworthy v Brickell (n 79). 93   See section 1.2.2.1 above. 94   Re Morris (n 91). 95   ibid [186].



7.4  Applying Presumed Undue Influence 229

actions aside on the basis of undue influence if he had not already found that the deceased lacked the required capacity. On the other hand, where the claimant has a reputation for being strong-willed and independent, it is more likely that the transaction will be allowed to stand,96 although in Hewitt v Gardner Ward J opined that ‘[t]he fact that the deceased felt able at times to state her own views or not to accede to [her carer’s] wishes’ did not ‘detract from the clear position of dependency’.97 Burns expresses concern that a reputation for independence will conceal the true context of the transaction, or the claimant’s vulnerability at the relevant time.98 It would nevertheless be undesirable to allow a donor’s estate retrospectively to cast doubt on the autonomy of an independently-minded donor who happened to require care, and judges have demonstrated an awareness of the dangers highlighted by Burns.99 It is possible that carers could avoid the operation of the doctrine if their relationship with the care recipient did not include management of her financial affairs. This suggestion, made by Lord Nicholls in Etridge,100 contrasts with earlier authority holding that ‘there is no need for any identity of subject matter between . . . the affairs which are managed on the one hand and the transaction of which complaint is made on the other’.101 Enonchong advocates this wider approach, arguing that the focus should be on the nature of the relationship rather than the details of the proposed transaction.102 In Thompson v Foy, Lewison J expressed the view that Lord Nicholls’ reference to management of financial affairs merely addressed the ‘paradigm’ relationship of influence and was not intended to constitute an ‘exhaustive’ description.103 If followed, this will close an unfortunate loophole that might otherwise have arisen where a carer was in a relationship of influence but happened not to manage the deceased’s financial affairs. In considering the level of dependence required under English law, Burns concludes that it need not be ‘excessive’ in comparison with elsewhere.104 On the other hand, the facts of each case are of paramount importance, and it seems likely that a situation involving a significant amount of care will lead to a relationship of influence. In the New South Wales case of Johnson v Smith, for example, Young JA accepted that it was 96   See, eg Morley v Emaleh [2009] EWHC 1196 (Ch); Christodoulou v Christodoulou [2009] VSC 583. 97   Hewitt v Gardner (n 1) [70]. 98   FR Burns, ‘The Elderly and Undue Influence Inter Vivos’ (2003) 23 Legal Studies 251, 267. 99   Sillett v Meek (n 90) [58] (Deputy Judge Michael Furness QC). 100   RBS v Etridge (No 2) (n 8) [14]. 101   Goldsworthy v Brickell (n 79) 401 (Nourse LJ). 102   Enonchong, Duress, Undue Influence and Unconscionable Dealing (n 56) [10-035]. 103   Thompson v Foy [2009] EWHC 1076 (Ch), [2010] 1 P & CR 16 [100]. cf his extrajudicial view about the importance of the connection between the relationship and the particular impugned transfer: Lewison, ‘Under the Influence’ (n 22) 7–8. 104   Burns, ‘The Elderly and Undue Influence Inter Vivos’ (n 98) 268.

230  Undue Influence ‘[p]erhaps’ accurate to say that ‘the mere fact that the appellant was [his mother’s] principal carer is insufficient’ to amount to a relationship of ascendancy.105 He nevertheless went on to find such a relationship extremely easily on the basis that the mother ‘was 82, of marginal ability to care for herself, [and] the appellant was the principal instigator of the transaction to which [his mother] acquiesced’.106 Moreover, Chen-Wishart has argued that relationships of influence are a positive and normal part of life,107 in much the same way that scholars on care claim that ‘dependency and the accompanying need for care are universal’.108 From the carer’s point of view, however, an objection to an overly interventionist application of the undue influence doctrine might be that the more assistance the carer gave, the more likely it is that the relationship is one of trust and confidence and the more likely it is, in turn, that the transaction will be set aside. The results produced, however, can be mitigated by the possibility that the care provides an explanation for the transaction. The next subsection considers that issue. 7.4.2  Transfers Calling for Explanation Despite some recent suggestions to the contrary,109 it has long been established in England and Wales that a relationship of influence is insufficient in itself to lead to a presumption of undue influence.110 Any presumption is ‘not perfected’ until an inexplicable transaction is entered into.111 This is a thoroughly sensible state of affairs since otherwise parties within Class 2A would be presumptively unable to enter into transactions with each other,112 and many carers within Class 2B would be in the same position. The language of ‘calling for explanation’ is misleading, however, since the presumption arises only if the explanation for the transaction ‘is not forthcoming’.113 The question whether a transaction calls for explanation goes to the heart of this chapter’s concern. The key issue is whether a transaction can be justified on the basis of the work done by the carer and the care recipient’s gratitude for it. As the Court of Appeal accepted in Jennings v Cairns,   Johnson v Smith (n 4) [93].   ibid [93]. 107   Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’ (n 62). 108   M Hubbard, ‘The Myth of Independence and the Major Life Activity of Caring’ (2004) 8 Journal of Gender, Race and Justice 327, 341. 109   Barclays Bank Plc v O’Brien (n 18) 189–90 (Lord Browne-Wilkinson). 110   Re Coomber [1911] 1 Ch 723 (CA). 111   Goldsworthy v Brickell (n 79) 401 (Nourse LJ). 112   RBS v Etridge (No 2) (n 8) [24] (Lord Nicholls). 113   Turkey v Awadh [2005] EWCA Civ 382, [2005] 2 FCR 7 [15] (Buxton LJ). That in itself has caused confusion between whether the presumption has arisen and whether it has been rebutted: Smith v Cooper (n 45) [65]–[66] (Lloyd LJ). 105 106



7.4  Applying Presumed Undue Influence 231

the relationship between two people can provide both the motivation for a gift and the opportunity to take unfair advantage.114 It must be conceded that sometimes a transaction will not be entered into out of sheer gratitude, and fear of abandonment by the carer could well form part of the care recipient’s motivation.115 In the absence of a general duty to remunerate an informal carer, the mere fact of care should not permit the upholding of a transaction to which the care recipient did not validly consent. A transaction calls for explanation if, in the words of Lindley LJ in Allcard v Skinner, it ‘cannot be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act’.116 In cases where there is more than one transaction, their explicability is sometimes assessed as a pattern.117 The explicability requirement has been expressed as involving ‘manifest disadvantage’ to the party seeking to have the transfer set aside, but there are dangers in working backwards to find a relationship of influence from the disadvantageous nature of the transaction.118 In Etridge, Lord Nicholls confirmed that the transaction need not disadvantage the claimant at all, while admitting that undue influence was unlikely to occur when the transaction is ‘innocuous’.119 As well as the magnitude of the transaction, any devaluation of the donor’s retained assets will be relevant.120 The court will clearly examine a wide variety of factors in determining whether a transaction calls for explanation, and proportionality is a pivotal aspect of the decision. As Gray and Gray put it, ‘an act of generosity entirely out of proportion to any kindness or service which may have been rendered by the disponee affords an immediate ground for suspicion’.121 This remark seems particularly apposite to relationships involving care. Defence counsel in Hammond v Osborn conceded that the disposition representing 90 per cent of a care recipient’s assets called for explanation, but Wall LJ still emphasised that it was not a ‘modest gift which could be explained away as a token of gratitude for the help [the donor] was receiving’.122 Rather, it was ‘an act of generosity wholly out of proportion to the kindness shown’.123 He criticised the trial judge’s approach on the basis that: ‘Available resources should have been balanced against likely needs and obligations’.124 This robust attitude is also   Jennings v Cairns [2003] EWCA Civ 1935, [2004] WTLR 361 [10] (Lord Phillips MR).   See, eg Re Craig [1971] Ch 95.   Allcard v Skinner (n 53) 185. 117   Re Craig (n 115) 119 (Ungoed-Thomas J). cf Cattermole v Prisk [2006] 1 FLR 693. 118   Tufton v Sperni [1952] 2 TLR 516 (CA). 119   RBS v Etridge (No 2) (n 8) [12]. 120   Goodchild v Bradbury (n 4). 121   Gray and Gray, Elements of Land Law (n 6) [8.1.103]. 122   Hammond v Osborn (n 55) [52]. 123   ibid [58]. 124   ibid [54]. 114 115 116

232  Undue Influence demonstrated in Niersmans v Pesticcio, where Mummery LJ appeared to assume that a transaction involving the transfer of the home of a dependent party caught up in a relationship of influence would require explanation,125 and the extent of any support provided by the defendant is sometimes considered as something of an afterthought in such cases.126 Similarly, Edelman and Bant suggest that if an elderly person transfers her home to a neighbour even for full valuable consideration, it may call for explanation because of the expectation that her home would pass to her children on her death.127 The proportionate nature of the transfer in relation to care performed, however, must be seen in the light of the effect of the transaction on the claimant and the relationship between the parties.128 Where more modest benefits are concerned, judges are sometimes called upon to adopt a highly nuanced approach. In Cattermole v Prisk, Judge Norris QC did so admirably.129 He upheld a first gift of £50,000 on the basis that it was ‘readily explicable’ by the relationship between the parties, since the defendant ‘was ever increasingly [the deceased’s] carer, and enabled her to avoid being a burden to her family or becoming a resident in a care home’.130 A second gift of £24,000, however, was not so readily explicable. The judge could not explain the deceased’s decision to ‘give another sizeable gift so soon after the first and out of reduced means’.131 The gift was therefore set aside. A similar approach was taken in Nattrass v Nattrass,132 a case from the Supreme Court of Western Australia in which gifts totalling around $6,000 made to a carer were not considered to call for explanation. Commissioner Buss QC held that ‘having regard to the companionship, assistance and support which [the defendant] had provided and was continuing to provide, gifts of these amounts could reasonably be accounted for by reference to ordinary motives of friendship and gratitude’.133 By contrast, a transaction valued at $53,000 was said to be inexplicable and therefore raised the presumption. This is consistent with a requirement of proportionality, or the idea that any gift must be ‘commensurate with services provided’.134 Enonchong opines that a transfer in return for care might not call for explanation, provided there are adequate safeguards to enable the care recipient to finance alternative accommodation should her needs require   Niersmans v Pesticcio (n 72) [4].   See, eg Janson v Janson [2007] NSWSC 1344 [107] (Biscoe AJ). 127   Edelman and Bant, Unjust Enrichment in Australia (n 11) 225. 128   Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’ (n 62) 254–58. 129   Cattermole v Prisk (n 117). 130   ibid [82]. 131   ibid [85]. 132   Nattrass v Nattrass [1999] WASC 77. 133   ibid [109]. 134   Trevenar v Ussfeller [2005] NSWSC 582 [53] (Gzell J). 125 126



7.4  Applying Presumed Undue Influence 233

it.135 Conversely, as noted in section 7.2, the court will readily intervene where the care recipient leaves himself in a position whereby he would no longer be able to pay for residential care if and when it is required. This occurred in Langton v Langton. In entering the ‘extremely improvident’ transaction, Deputy Judge Charles QC was concerned that the deceased ‘effectively placed his future in the hands of the defendants’.136 Given the present difficulties surrounding care funding,137 it is essential that the interests of those who may need to pay for formal care are safeguarded, and it is a terrible irony that judges are often able to assess these needs only hypothetically and after the care recipient has died. It is also unfortunate, however, that shortages in public funding can both enhance the significance of private transfers to carers and render them more vulnerable to being set aside through undue influence, and a judge could potentially over-use the benefit of hindsight. Still, the ‘calling for explanation’ requirement provides an opportunity for the value of the carer’s work to be recognised. This is true even if judges are forced to make difficult proportionality-based judgements and effectively become involved in the ‘substantive’ rather than simply the ‘procedural’ aspects of the transaction.138 In any case, Chen-Wishart has argued that ‘substantive unfairness is of the essence of undue influence’.139 Provided the explicability requirement is applied rigorously, it can compensate for the likely finding of a relationship of influence. Unfortunately, such rigour is not always evident, notably in Australian cases. Indeed, one Australian textbook goes so far as to assert that relationships within Class 2 ‘give rise to a presumption that undue influence induced any transaction between the parties’ (emphasis added),140 before considering the ‘English position’ including the requirement that a transfer calls for explanation.141 In the New South Wales case of Hewitt v Gardner, for example, Ward J appeared to proceed directly from a finding of a relationship of influence to consider whether the defendant carer had rebutted the presumption of undue influence that he considered had been raised.142 Since the transaction under scrutiny involved the transfer of the care recipient’s interest in the family home for $1, such that her estate originally comprised of next to nothing, it is possible that the judge   Enonchong, Duress, Undue Influence and Unconscionable Dealing (n 56) [11-016].   Langton v Langton (n 29) 905.   See, eg section 1.2.3.4 above. 138   AA Leff, ‘Unconscionability and the Code – the Emperor’s New Clause’ (1967) 115 University of Pennsylvania Law Review 485. 139   Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’ (n 62) 265. 140   L Willmott, S Christensen, D Butler and D Dixon, Contract Law, 3rd edn (Melbourne, Oxford University Press, 2009) [16.35]; cf Edelman and Bant, Unjust Enrichment in Australia (n 11) 224–25. 141   Willmott, Christensen, Butler and Dixon, Contract Law (ibid) [16.87]–[16.88]. 142   Hewitt v Gardner (n 1) [70]–[72]. 135 136 137

234  Undue Influence thought it self-evident that it called for explanation. Nevertheless, he stated explicitly that ‘it matters not that [the carer] may have been deserving of just such a benefit’.143 It is more than arguable that if a carer is truly ‘deserving of just such a benefit’ (which the defendant in Hewitt might not have been on the facts of the case), the transfer should not be judged as calling for explanation so that the presumption is raised in the first place. If judges do not consider the ‘calling for explanation requirement’ explicitly, carers could be illegitimately deprived even of benefits proportionate to their endeavours. That said, a carer is still given the opportunity to rebut the presumption even if it is raised too readily, and the next section considers the methods by which he may do so. 7.4.3  Rebutting the Presumption If there is a relationship of influence and a transaction calling for explanation, a presumption of undue influence is raised. The usual method by which a defendant seeks to rebut it is by showing that the claimant had access to independent professional advice, although other methods are available.144 This is sometimes the first stage at which the carer can realistically mount a defence: in Hammond, for example, defence counsel conceded both that there was a relationship of influence and that the transaction called for explanation.145 When seeking to discharge the evidential burden placed upon him, it is not sufficient for the defendant to show that the donee understood what she was doing and intended to do it. Where undue influence is truly at issue (as opposed to lack of capacity, for example), ‘the influencee . . . will always know what he or she is doing; the question is why’.146 The protection relates to weakness, rather than an inability to comprehend.147 So in Hammond, the fact that ‘the deceased knew what he was doing, had sufficient mental capacity to understand what he was doing and intended to make a gift of the money . . . [was] not material’ to the question whether the presumption had been rebutted.148 That said, issues of capacity are sometimes intermingled in decisions based on undue influence.149   ibid [70]. See also Winefield v Clarke [2008] NSWSC 882 [43]–[44] (Barrett J).   See Lewison, ‘Under the Influence’ (n 22) 10–11 for a discussion about the open-ended nature of the evidence necessary to rebut the presumption. 145   Hammond v Osborn (n 55) [1], criticised by Lewison, ‘Under the Influence’ ibid 12–13. See also Lai See Law by her Tutor the Protective Commissioner of New South Wales v Yan Mo [2009] NSWSC 639 [77]. 146   Leeder v Stevens [2005] EWCA Civ 50, (2005) 149 SJLB 112 [19] (Jacob LJ). 147   RBS v Etridge (No 2) (n 8) [111] (Lord Hobhouse). 148   Hammond v Osborn (n 55) [41] (Ward LJ). 149   See, eg Smith v Cooper (n 45); Gorjat v Gorjat [2010] EWHC 1537 (Ch), (2010) 13 ITELR 312. 143 144



7.4  Applying Presumed Undue Influence 235

The mere fact that the care recipient broadly took the initiative does not necessarily mean that the eventual transaction is justified,150 and a donor’s statement that no pressure was applied may not provide a justification either.151 Conversely, it is insufficient to show that the donee did not ask for the transaction to be entered into.152 In Inche Noriah v Shaik Allie Bin Omar, the Privy Council held that legal advice is neither necessary nor sufficient to discharge the presumption. The question is whether the transaction was in fact ‘the result of the free exercise of independent will’ with knowledge of its consequences, regardless of the means by which that is demonstrated.153 Again, it is not necessarily enough that the owner should understand the transaction as a result of the advice, and the advisor may be expected to discuss whether the transaction is in the donor’s best interests. The advice, according to Lord Nicholls in Etridge, must have an ‘emancipating effect’.154 It will therefore be a significant factor weighing against the independent advice where a solicitor is engaged by the defendant,155 although in Collier v Morlend Finance Corporation the New South Wales Court of Appeal decided that the mere fact that the donee nominated the solicitor does not invalidate the independence of the advice.156 Clearly, the advice is unlikely to be independent if given in the donee’s presence, and it must be ‘removed entirely from the suspected atmosphere’.157 There are a number of Australian cases in which the presumption of undue influence has been rebutted by demonstrating that the transaction was not improvident.158 Edelman and Bant suggest that where a claimant enters a transaction for personal profit, the presumption should be rebutted.159 Since improvidence is a key factor in determining whether or not a transaction calls for explanation, however, the presumption may not be raised in the first place,160 and a focus on improvidence in rebutting the presumption is a symptom of the lack of rigour in applying the inexplicability requirement discussed above. Moreover, the concept of profit is particularly problematic in the care context. Nevertheless, in Janson v Janson demonstrating that a transaction was not improvident was listed alongside independent legal advice as a means of rebutting the presumption.161   Vale v Armstrong [2004] EWHC 1160 (Ch), [2004] WTLR 1471.   Goodchild v Bradbury (n 4). 152   ibid [24] (Chadwick LJ). 153   Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 (PC) 135 (Lord Hailsham LC). 154   RBS v Etridge (No 2) (n 8) [20]. 155   See, eg Niersmans v Pesticcio (n 72), where the solicitor was on first-name terms with the donee and her daughter. 156   Collier v Morlend Finance Corporation [1989] ASC s 55–716. 157   Re Coomber (n 110) 730. 158   Duggan, ‘Undue Influence’ (n 51) [1118]. 159   Edelman and Bant, Unjust Enrichment in Australia (n 11) 227. 160   See, eg Darmanin v Cowan [2010] NSWSC 1118 [336]–[339] (Ward J). 161   Janson v Janson (n 126) [81] (Biscoe AJ). 150 151

236  Undue Influence In any event, advice and improvidence are linked, since ‘the role of independent advice in this context includes guarding against improvidence’.162 It is arguable that stringent obligations are effectively placed upon the carer in many situations. As Ward LJ has said, while actual undue influence concerns what has been done ‘to twist the mind of a donor’, with presumed undue influence ‘it is more a case of what has not been done’.163 In a New South Wales case, moreover, the judge opined that ‘[the defendant’s] selfless dedication to the plaintiff’s care was admirable, but the situation created by that relationship makes it necessary for her positively to justify the gift to her’.164 One commentator goes as far as to suggest that it may be necessary to subject donors who are ‘clearly ill or of very advanced age’ to a medical examination to ensure that the transaction will not be overturned after the event.165 While this is probably an exaggeration and seems more relevant to capacity, it could be argued that any obligation undertaken by the carer in this respect is outweighed by the fact that he will obtain the benefit of the transfer. This argument is somewhat undermined by the fact that a carer might be aware of his effective obligations only if and when he seeks legal advice himself. On the other hand, it must be remembered that before reaching the stage where the carer’s obligations in respect of the transaction become relevant, in principle the transaction has already been found to call for explanation, and in the New South Wales case of Hewitt v Gardner the placing of the onus on the defendant carer was considered justified because ‘the circumstances in which the transfer came about were peculiarly within her knowledge’.166 Some deserving carers will not be able to retain benefits that the care recipient has personally attempted to confer upon them, but many will encounter no difficulties if they receive a benefit proportionate to what they have done, provided it does not cause disproportionate disadvantage to the care recipient167 and is explicable in the context of the relationship. Many more will be able to justify the receipt of disproportionate, less explicable benefits if the care recipient obtains appropriate advice. This appears to strike an adequate balance between the interests. One remaining problem is that the decision as to the size of the benefit originally conferred rests in the hands of the care recipient so that the 162   Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153, [2008] ALMD 1901 [124] (Brereton J). The appeal ([2009] NSWCA 216, [2009] ALMD 6187) did not concern undue influence. 163   Drew v Daniel [2005] EWCA Civ 507, [2005] 2 FCR 365 [31]. See also Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’ (n 62). 164   Federov v Yakimov, unreported, New South Wales Supreme Court, 5 December 1991 (Needham J). 165   PH Kenny, ‘Conveyancer’s Notebook’ [2008] Conveyancer and Property Lawyer 1, 2. 166   Hewitt v Gardner (n 1) [63] (Ward J). 167   Goodchild v Bradbury (n 4).



7.5  Conclusion 237

carer may have had little choice but to receive a large benefit (vulnerable to being set aside on the basis of undue influence) where a smaller one would have been acceptable because of the extent of the care provided. Counter-restitution is potentially available as a defence in respect of valuable benefits provided by the defendant to the claimant under an impugned transaction. Asserting a defence of counter-restitution, however, would effectively require the carer to show that the care recipient was unjustly enriched by the care, and it has been seen that it is not clear that English law is sufficiently developed to support such an unjust enrichment claim by the carer because of the difficulty of establishing a ground of restitution.168 It may be possible to argue that the carer was unjustly enriched only to the extent that the transaction was inexplicable. However, although they are willing to consider separate transfers individually in care scenarios, judges often talk in terms of setting aside each impugned transfer as a whole.169 7.5 CONCLUSION

Throughout this book, it has become clear that the question of support for carers is a difficult area of social policy, and that private law is useful in filling some of the gaps. Undue influence can sidestep some of the policy questions, since the main issue is whether a transaction or transfer that has already occurred should be upheld by the court. That is not to say that the decision is an easy one, and it will be highly fact-dependent. Moreover, the doctrinal uncertainties relating to undue influence itself do not help matters. Burns concludes that the courts in the UK have shown themselves to be highly suspicious in cases where a claimant has transferred her only asset to a relative or carer,170 and in her view this was less true of the Australian courts.171 As with the estoppel doctrine considered in chapter two, however, it is difficult to draw any firm conclusions on the differences in the conceptions of the doctrine within the two countries. The Australian courts, for instance, have on occasion been content to cite Etridge in ‘carer’ cases,172 and any enhanced dependency requirement could be offset by a reluctance to enter an explicability analysis.   See ch 4.  In Langton v Langton (n 29), the defendants unsuccessfully argued that their expenditure on the property that they had been gifted should be taken into account (910). For a more successful quantum meruit-style cross-claim by a defendant carer in an undue influence case, see Lai See Law by her Tutor the Protective Commissioner of New South Wales v Yan Mo (n 145) [107]–[114] (Bergin CJ in Eq). 170   Burns, ‘The Elderly and Undue Influence Inter Vivos’ (n 98) 272. 171   Burns, ‘Elders and Undue Influence Inter Vivos: Lessons from the United Kingdom’ (n 48) 73. 172   See, eg Janson v Janson (n 126) [93] (Biscoe AJ). 168 169

238  Undue Influence In an overall sense, the doctrine of undue influence is indeed likely to be a significant fetter upon the ability of a care recipient to transfer a bene­ fit to her carer. While a care relationship will not usually fall into the old category 2A of itself, the relationship is likely to be one in which the presumption of undue influence can apply when combined with an inexplicable transfer or other transaction. The explicability requirement is therefore to be welcomed, since it has the potential to permit a carer to retain a modest and non-damaging reward for his efforts through the application of a proportionality analysis. It is, therefore, extremely worrying that the approach is not always evident in Australia. Even where an explicability analysis is applied, however, it will inevitably be approximate and somewhat unpredictable. Legal advice for the care recipient will often be necessary, and the carer is placed in a difficult position since he is likely to be in a position to arrange for the advice and yet he must take great care not to be connected with its delivery. Moreover, it could be difficult to ensure that the advice is given in an emancipating environment given that a care recipient is by definition unable to attend comprehensively to her own needs and may have difficulty in leaving her home. The fetter of undue influence is often a beneficial one given the inherent vulnerability of the care recipient. On the other hand, it should not be forgotten that the doctrine can override the autonomy of a legally competent care recipient, effectively through the actions of her estate. Such a donor could be outraged at the suggestion that her actions are liable to be undone by a court at the instance of her heirs after her death. The court must therefore be mindful of the motivations of the accusing parties in bringing an undue influence claim, and assess the available evidence in an evenhanded manner.173 Finally, undue influence raises some important questions about the use of private law claims by carers considered elsewhere in this book. For example, if we are willing to undo (otherwise) validly made transfers as a result of undue influence, it might be inappropriate to enforce promises relating to transfers that were not validly executed when those promises are made by a property owner in a similar relationship of dependency. At the same time, it is significant that the concept of proportionality is key in both proprietary estoppel and undue influence. It has also been seen that mechanisms addressing unconscionability of outcome, such as family provision law, do not conclusively depend on the intention or other mental states of the care recipient, and in this respect it could therefore be said that undue influence truly addresses a fundamentally different question from that considered elsewhere in the book. The next chapter concludes the book. 173  In Morley v Loughnan (n 37), Wright J was easily satisfied that the deceased’s executors were ‘actuated by no motives of personal interest whatever’ in bringing their claim (751).

8 Conclusion

I

8.1  CARERS AND PRIVATE LAW

T COULD BE argued that the ideal method of providing for both carers and care recipients is through the welfare state. Steps are being taken by the relevant authorities in England and Wales that have the potential to increase support for both groups, as noted in chapter one. Nevertheless, there is a legitimate concern that such provision will be inadequate as the population ages and the need for care increases. Such concerns are heightened by the perceived need for cuts across the public sector as a result of the recent economic downturn. It could therefore be increasingly necessary to use private law remedies to encourage and remunerate informal care by relatives and others, even if this can never be a comprehensive support mechanism for informal carers. Such remedies might be required as a matter of justice for those who do not require an incentive to provide care. This book has explored a range of possible private law remedies, considering, inter alia, whether they address unconscionability of dealing or of outcome. This final chapter aims to draw some conclusions. 8.2  UNCONSCIONABILITY OF DEALING

Mechanisms addressing unconscionability of dealing are, on the whole, likely to provoke less controversy than those mechanisms that seek to provide a remedy where no promise has been made to the carer. The carer is less liable to be characterised as a ‘risk-taker’,1 since some expectation of a benefit was generated by the care recipient even if the carer did not fully secure his entitlement, for example by entering a contract.2 That said, the fact that the law remains willing to intervene in some circumstances when a care recipient does successfully transfer a benefit to a carer, as discussed in chapter seven, underlines the fact that even mechanisms addressing unconscionability of dealing are not free from difficulty. It is   See section 1.4.2 above.   cf J Mee, ‘The Limits of Proprietary Estoppel: Thorner v Major’ (2009) 21 Child & Family Law Quarterly 367, 374. 1 2

240  Conclusion nevertheless significant that the concept of proportionality is key both when assessing the remedy for a claim based on unconscionable dealing in the context of estoppel,3 and when determining whether a carer should be able to retain benefits transferred by the care recipient notwithstanding his near-inevitable relationship of influence with her,4 albeit that the defendant who has already received a benefit is rightly given an extra opportunity to retain disproportionate or inexplicable rewards by demonstrating that the transfer was in fact the result of free will.5 On the assumption that some form of unconscionable dealing as defined in this book should be remedied, English law deals relatively effectively with cases of ‘unconscionability of dealing’ through proprietary estoppel, as noted in chapter two, but the applicable principles are characterised by uncertainty. Moreover, private law mechanisms such as estoppel can and do circumvent the requirements of a valid contract, as well as formal requirements imposed by property and succession law.6 The fact that they do so continues to provoke debate. A statutory mechanism such as that present in New Zealand, considered in chapter three, would clarify and codify the enforcement of testamentary promises, creating a bespoke remedy with more legitimacy and avoiding many of the problems currently associated with both proprietary estoppel and unjust enrichment in England.7 It could also cope more effectively with competing claims on the care recipient’s estate, such as those pursued through family provision law. Mechanisms addressing unconscionability of dealing tend to take account of what is usual in the particular category of relationship shared by the carer and the care recipient when assessing the extent of the caring contribution.8 This is likely to benefit the ‘pure’ carer, although such an approach inevitably involves difficult value judgments. It is also vulnerable to criticism from those who reject the characterisation of care as something that is simply expected and unrecognised within the private sphere of the family.9 It nevertheless places a pragmatic filter on claims by effectively imposing a de minimis requirement, and Nield has noted that the New Zealand courts have avoided opening the floodgates when applying the 1949 Act.10

  See, eg section 2.3.2 above.   See section 7.4.2 above. 5   See section 7.4.3 above. 6   See section 2.4 above. 7   See ch 4 above. 8   See, eg sections 2.2.4.4 and 3.3.2 above. 9  See, eg MA Fineman, The Autonomy Myth: A Theory of Dependency (New York, New Press, 2004) 228. 10  S Nield, ‘“If You Look After Me, I will Leave You my Estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (2000) 20 Legal Studies 85, 103. 3 4



8.3  Unconscionability of Outcome 241 8.3  UNCONSCIONABILITY OF OUTCOME

An approach based entirely on ‘unconscionability of dealing’ is likely to exclude those carers to whom a promise was never made11 and, in the case of proprietary estoppel,12 some of those who were not motivated to continue caring by a promise of reward. The notion of ‘unconscionability of outcome’ has therefore been used in this book to consider whether remedies should be granted not on the basis that the care recipient indicated that the carer would receive anything, but because the carer’s work is perceived to merit a remedy in any event. Under Gray’s conception of ‘unconscionability of outcome’, which may differ from that adopted in this book,13 equity intervenes as a ‘sheer instrument of distributive justice notwithstanding that the maldistribution corrected by curial order is not attributable to unconscionable conduct on the part of anyone’.14 This is a difficult notion within the realm of private law. For example, even when accepting the ‘predominantly’ remedial character of the constructive trust in Australia, in Muschinski v Dodds, Deane J was adamant that it did not represent ‘a medium for the indulgence of idiosyncratic notions of fairness and justice’.15 Although there are areas of the law through which the state expects its citizens to confer benefits on others at their own expense, such as taxation, relief on divorce and child support, these are limited. The level of discomfort with an unconscionability of outcome-based approach and the general preference for unconscionability of dealing are demonstrated by the decision of the House of Lords in Stack v Dowden.16 That decision seemed to qualify the suggestion, made by Chadwick LJ in Oxley v Hiscock, that the quantification of the extent of a constructive trust should be undertaken on the basis of what was ‘fair’ with regard to the parties’ whole course of dealing in relation to the property.17 As an alternative, the majority insisted upon deciding the issue (albeit unconvincingly) with reference to the common intention of the parties.18 This is closer to an ‘unconscionability of dealing’ approach, although of course the Supreme Court moved back towards the Oxley reasoning in Jones v Kernott by holding that Chadwick LJ’s approach does have a role to play where the   See, eg sections 2.2.2.5 and 3.2.1 above.   See section 2.2.3.2 above. 13   See section 1.3.2 above. 14   K Gray, ‘Property in Common Law Systems’ in AJ Van der Walt and GE Van Maanen (eds), Property Law on the Threshold of the 21st Century (Antwerp, MAKLU, 1996) 260. 15   Muschinski v Dodds [1985] HCA 78, (1985) 160 CLR 583, 615. 16   Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432. 17   Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211 [69]. 18   Stack v Dowden (n 16) [61] (Lady Hale). 11

12

242  Conclusion parties intended differing legal and equitable shares but it is not possible to infer what sizes were intended.19 In any case, an approach based on ‘unconscionability of outcome’ limits the autonomy of the care recipient, and is particularly open to ‘risk-­ taking’-based criticisms. As Christine Davis puts it: ‘A loss can be said to be deserved by someone who was not acting under any misapprehension as to his rights and knew he was taking a risk.’20 Nevertheless, Kortmann recognises that self-determination or autonomy is not the only principle governing private law in either common or civil law jurisdictions, and that ‘substantial inroads’ into it have been created.21 Similarly, Craig Rotherham has argued in favour of recognising the fact that some proprietary remedies are redistributive, and expressed doubts about the propriety of absolutist conceptions of property in the context of intimate relationships.22 The use of family provision law to support the carer, as advocated in chapter five, would be a limited ‘inroad’ into the autonomy of the care recipient. English law is already content to redistribute estates in spite of the default principle of testamentary freedom,23 such that we need not be conclusively influenced in this context by factors such as ‘risk-taking’ and ‘donative intent’, or whether the carer acted altruistically. That said, in contrast to the position in New South Wales and elsewhere, carers are often denied a remedy by the Inheritance (Provision for Family and Dependants) Act 1975. Here, unlike mechanisms addressing unconscionability of dealing, a familial or conjugal connection with the deceased can be crucial to the success of a claim,24 and care provided is not always given significant weight in itself. English law should do more to recognise the carer as a category of applicant in his own right, and to take account of care in satisfying claims by those eligible.25 On the other hand, in chapter six it was conceded that a wide-ranging recognition of care relationships, facilitating inter vivos redistribution of property inter alia, is problematic for reasons including possible adverse consequences for the equal treatment of same-sex relationships. Based on the experience in Tasmania, such recognition of care relationships would be potentially futile if it were to take the form of a registration scheme,

  Jones v Kernott [2011] UKSC 53, [2011] 3 WLR 1121 [51] (Lord Walker and Lady Hale).   CJ Davis, ‘Informal Acquisition and Loss of Rights in Land: What Justifies the Doctrines?’ (2000) 20 Legal Studies 198, 199. 21   J Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio, (Oxford, Oxford University Press, 2005) 87. 22  C Rotherham, Proprietary Remedies in Context: A Study in the Judicial Redistribution of Property Rights (Oxford, Hart Publishing, 2002). 23   See section 5.2 above. 24   See section 5.3 above. 25   See section 5.4 above. 19 20



8.4  Limitations of Statutory Discretions 243

since its success would depend upon a desire among carers and care recipients to formalise their relationships.26 8.4  THE LIMITATIONS OF STATUTORY DISCRETIONS

A conclusion has been reached that advocates a statutory mechanism for addressing unconscionability of both dealing and outcome.27 That creates a possibility of confusion, but the New Zealand Law Commission’s proposed reforms to the law of family provision and testamentary promises demonstrate that it is possible to devise a scheme covering both promises and the recognition of work done in the absence of an express promise. These were considered in section 3.3. Moreover, the emphasis on taking account of any arrangement between the parties even where a claim is based on unjust retention of a benefit, to an extent reflects the more easily justifiable claim of a carer who has been subjected to unconscionability of dealing. As far as the nature of relief is concerned, a sense of absolute entitlement is likely to be undesirable given the highly individualised circumstances in which claims are brought. A statutory discretion is therefore preferable. That is not to suggest that statutory discretions are a panacea. Indeed, the English law of ancillary relief is characterised by such a discretion, and it has been the subject of significant criticism due to its uncertainty,28 as well as calls for reform from the senior judiciary.29 Even so, a discretionary approach does at least enable the court to take account of a wide range of articulated relevant factors and goes some way towards countering allegations of arbitrariness. In its recent project on intestacy and family provision law, moreover, the Law Commission did not recommend wholesale change to the discretionary method by which family provision claims are determined.30

  See section 6.3.2 above.   Wells’ unpublished doctoral thesis contains an impressive attempt to improve on the existing methods of testamentary promise enforcement: see the ‘Inheritance (Testamentary Promises) Act’, contained in ch 9 of RP Wells, ‘Testamentary Promises: A New Approach’ (PhD thesis, King’s College London 2007). Given the number of considerations that Wells deems relevant to relief (see s 4 of her proposed Act), it is unfortunate that she excludes nonpromise scenarios from its scope. 28   See, eg RP v RP [2006] EWHC 3409 (Fam), [2007] 1 FLR 2105 [77]–[78] (Coleridge J). 29   Charman v Charman [2007] EWCA Civ 503, [2007] 1 FLR 1246 [126] (Sir Mark Potter P). 30   Law Commission, Intestacy and Family Provision Claims on Death: A Consultation Paper (Law Com CP No 191, 2009) [1.24]. cf Sir Nicholas Wall’s preference for the terminology of ‘value judgment’ rather than discretion, noted in section 5.2 above. 26 27

244  Conclusion 8.5  THE MEASURE OF RELIEF

Certain factors will inevitably be influential in determining the quantum of a remedy given to a carer. In relation to unconscionability of dealing, some recognition of the value of any particular asset that was promised seems inescapable.31 This has the potential to produce arbitrariness as regards the amount of care provided in individual cases, but if the very legitimacy of the expectation of reward is heightened by the promise itself, some reference to the promise in quantifying the remedy is justifiable. On the positive side, mechanisms remedying unconscionability of dealing do tend to permit recognition of the value of the services performed by the carer, or at least the disadvantages suffered by him in the course of providing them, even if that can be a factor limiting the extent of the remedy. In the context of unconscionability of outcome, by contrast, successful family provision claims are often predicated on the applicant’s future need even where, as in New South Wales, an applicant’s eligibility for provision has been facilitated by past services to the deceased.32 A focus on need has the potential to cause particular injustice where a carer has no future need by virtue of the cessation of his caring responsibilities. Conversely, such a focus in the context of family provision law can sometimes justify provision for ‘lame ducks’ who have not provided any care, and this is often unsatisfactory.33 More emphasis ought to be placed on remuneration for the extent of the service rather than on future need or even compensation for loss. Kortmann has expressed concern that ‘any approach that makes an intervention profitable is at risk of undermining the intervener’s intrinsic motivation, and is more prone to abuse’.34 In the context of property redistribution following parental separation, however, Glennon has advocated ‘recognition of the positive value of [caring] contributions as opposed to simply viewing them through a remedial framework which measures the caregiver’s economic loss’ inter alia because of the benefits provided to the other parent.35 Admittedly, this reasoning is not entirely analogous to the two-party care situations considered in this book. Indeed, Glennon explicitly states that her argument ‘is not driven by the desire to increase the quantum of financial remedies on divorce/separation’.36 Even so, her   See sections 2.3 and 3.4 above.   See section 5.4.10 above. 33   See, eg section 5.4.9.1 above. 34  Kortmann, Altruism and Private Law: Liability for Nonfeasance and Negotiorum Gestio (n 21) 180. 35  L Glennon, ‘Obligations Between Adult Partners: Moving from Form to Function?’ (2008) 22 International Journal of Law, Policy and the Family 22, 47. 36   ibid 56 fn 179. 31 32



8.6  The Future 245

analysis does highlight the real value of caring contributions made even in the absence of factors such as career sacrifice or future need. Attaching positive value to domestic services is difficult where the provider and the recipient of the services live together as a couple and then seek to redistribute their property inter vivos.37 Many of these difficulties would be present even where substantial care was provided by a ‘pure’ carer who did not live with the care recipient and who brings a claim only after the care recipient has died, although the Canadian unjust enrichment cases involving carers suggest that the extent of the difficulties would be reduced.38 In conclusion, redressing need and/or economic disadvantage caused by care can legitimately be regarded as a priority, not least because the disadvantage suffered by carers is one of the most convincing justifications for allowing them a private law claim in the first place. It would nevertheless be possible to accommodate recognition of need, compensation for economic disadvantage, the value of a service, and the nature of any promise (alongside any countervailing benefits already received by the carer) within a broad and discretionary statutory framework for carers making a family provision claim.39 8.6  THE FUTURE

It is not the intention of this book to argue passionately that a large-scale furthering of the carer’s interests in private law is an urgent development. The pace of any reform undertaken would inevitably be slow, and public expectations relating to the legal consequences of particular types of relationship cannot be ignored. However, as society faces the challenge of the ageing population, there is considerable scope for an increase in, and a rationalisation of, the recognition accorded to the informal carer within several areas of private law. The emphasis should be on rationalisation in the context of unconscionability of dealing, where provision for carers already exists in England and Wales and is generally easier to justify. As regards unconscionability of outcome, the scarcity of provision in England and Wales means that any reform should concentrate on increased recognition. This would generate much debate and would be unacceptable to many. Nevertheless, the strain under which societal resources will be placed and the need for justice for 37   See, eg Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown. A Consultation Paper (Law Com CP No 179, 2006) [6.120]–[6.125]. 38   See section 4.5. 39   Wells’ ‘Inheritance (Testamentary Promises) Act’, while confined to the enforcement of promises only, utilises a structured discretion encompassing different types of award (s 2), with each type of remedy given a different priority over other claimants (s 5).

246  Conclusion informal carers render it vital at least seriously to consider the specific recognition of such carers within private law, even in the absence of unconscionable dealing and even for entirely altruistic carers.

Index adult children see under children altruism, 6, 141    altruistic carers, 17–18, 40, 49–50, 74, 99, 246     determining whether altruistic endeavour, 219, 242      expectation of a remedy, 15–18     reliance requirement, 90, 98     supporting by remedying unconscionability of outcome, 105    and friendship, 138-39    unjust not to facilitate a remedy for those motivated by altruism, 17–18 Australia, 3    carer’s relationship with care recipient, wide recognition of, 11    ‘close personal relationship’ carer category: New South Wales, 29, 167–72, 173–74, 204      domestic support and personal care, 171–72     living together, 169–71      New South Wales legislation, 168–69      relevance of care provided to quantification of relief, 201–2    constructive trust, remedial nature of, 88    contract law and part performance, 27    estoppel doctrine, 31, 88–89     detriment, 54     irrevocability of representations, 46      link to property not necessarily required for equitable estoppel claims, 34     non-bargain cases and the Australian approach, 68–69     reliance loss approach, 68–69     reliance requirement, 51      representations must be intended to be relied on, 39     representor acquiring subsequent interest in the property, 41     uncertainty, 44      unification of proprietary and promissory estoppel, 34, 44    family provision, 244     adult children’s claims, 192     cohabitants, 188     conduct, 186–87      dependants in New South Wales, 161–62

     development of family provision, 150     distinctive features of Australian statutes, 151–52      example of a ‘carer’ category: New South Wales, 167–69      former spouses and civil partners, 187      as important exception to general rule of testamentary freedom, 149     intestacy rules, 179      living as a couple/in the same household, 164, 165     maintenance, 177, 181–82     minimum duration, 166      moral obligations, 195     receipt of pension/allowance not precluding claim by carer, 147      relevance of testamentary intentions of deceased person, 141   inter vivos provision, 29, 211–15      recognition of caring relationships in New South Wales, 212–13     registration schemes, 213–15    Law Reform Commission, New South Wales, 173, 215     determining a ‘close personal relationship’, 172      future needs in close personal relationships, 212–13      living together requirement, 170, 207     ‘personal care’ element, 171   Tasmania     ‘caring relationships’, 170, 213–14       Relationships Act 2003 (Tasmania), 213–14     family provision, 170      New South Wales Law Reform Commission, 170     registration of ‘close personal relationships’, 172, 215    undue influence, 223, 237–38     independent professional advice, 235      presumed undue influence, 227, 229–30     rebutting the presumption, 235–36     transaction not improvident, 235–36      transfers calling for explanation, 233–34     and unconscionable dealing, 225–26 autonomy, 89    of donors/care recipients, 229, 238, 242     inability to assert, 124    as principle governing private law, 242

248  Index Bailey-Harris, Rebecca, 59 Bant, Elise, 218, 232, 235 bargain cases see under remedial discretion Barkehall Thomas, Susan, 34, 39 Barker, Nicola, 208 Beatson, Sir Jack, 122 Behrens, Juliet, 214 Belgium, 211 benefits to carers, 10 Big Society, 3 Birks, Peter, 23    undue influence, 222, 224    unjust enrichment, 125–26 Blackstone, W, 143 Borkowski, Andrew, 75   family provision:      adult children’s claims, 191, 193–94     maintenance, 177     moral obligations, 195     need to demonstrate maintenance/full valuable consideration, 154      potential for harm from disinheriting children, 143     testamentary freedom, 148–49 bona vacantia and carers 179–80 Boyd, Susan, 213 Bridge, Stuart, 153, 159 Bright, Susan, 61 Burles, David, 52 Burns, Fiona, 223, 224, 225–26, 229, 237 Burrows, Andrew, 125 Canada:    family provision, development of, 150    presumption of advancement, 144    unjust enrichment, 60, 123, 129–34, 204, 245      claimant to show absence of juristic reason for retention of enrichment, 130      Court’s discretion as to available remedies, 132–33      donative intent, 128, 132, 134     fee-for-services/value received approach, 133     joint family venture scenarios/value survived approach, 133      juristic reasons for an enrichment, 130–32     principle of necessity, 127      reasonable expectations of the parties, 130      used to provide remedy for carers, 129–30 Cardinal, District Judge, 154 care and carers:    benefits to carers, 10    care and familial relationships, 16–17

  care recipients see care recipients    caring as creating a social debt, 6    definitions, 3–4     care workers, 4     pure carers, 152    financial rewards for caring: 14–18     controversial nature of, 15–16      necessary to support and encourage care, 14–15, 17      unjust not to facilitate a remedy for those motivated by altruism, 17–18   formal care see formal care    increasing population/ages, 1, 239   informal carers see carers and informal care    need for a sustainable social care system, 13    projected increase in care needs, 12, 239    public integration model of care, 7    society’s dependence on ‘caretaking labor’, 5–6    state support for carers see state support for carers    unique position of carers, 60, 81    value of care work, 60, 244–45      financial value of informal care, 12      high opportunity costs of caring, 16, 146      informal care as most important source of care, 2–3, 12–13 care funding, 145, 219    care recipients funding costs on meanstested basis, 18    local authorities charging for nonresidential services, 19    local authorities recovering payments for residential care, 18–19    necessary to support and encourage care, 14–15, 17    need for a sustainable social care system, 13    projected increase in care needs, 12, 239    society’s dependence on ‘caretaking labor’, 5–6    state support for carers see state support for carers    ‘substantial amount of care’ needed before requesting assessment, 4–5    transfers from care recipients affecting funds, 219, 233 care recipients:    breakdown of caring relationship, property redistribution on see inter vivos provision    certainty requirement protecting recipient from arbitrary deprivation of property, 44

   core scenarios between carer and care recipient, 20–21, 23    fostering expectation of a remedy, 17    indicating that carer will receive a benefit see proprietary estoppel   inter vivos property redistribution see inter vivos provision    level of control inconsistent with society’s need for informal carers, 49    meaning of, 4:    reliance requirement protecting, 52   unconscionable conduct see proprietary estoppel; unconscionability    undue influence see undue influence    unjust enrichment of care recipient by care services see unjust enrichment    vulnerability, 40, 52, 60, 124     reputation for independence concealing, 229      and undue influence, 219, 225 care workers, 3–4 carers and informal care, 1–2    breakdown of caring relationship, property redistribution on see inter vivos provision    care recipient indicating that carer will receive a benefit see proprietary estoppel    carer/care recipient core scenarios, 20–21, 23   carers and bona vacantia, 179–80    carers appearing like ‘gold-diggers’ by bringing estoppel claims, 52    carers and constructive trust see constructive trust and carers    failure by society to recognise informal care, 6    family provision law to recognise the carer, use of see family provision    financial rewards for caring: 14–18     controversial nature of, 15–16      necessary to support and encourage care, 14–15, 17      unjust not to facilitate a remedy for those motivated by altruism, 17–18    numbers of carers, 3    private law support for carers see private law support for carers   pure carers:      definition, 152     family provision see family provision     inter vivos provision see inter vivos provision       nature of, 4    proprietary estoppel see proprietary estoppel

Index 249    state support for carers see state support for carers    stellar contributions, 184–85    undue influence see undue influence    unique position of carers, 60, 81    unjust enrichment of care recipient see unjust enrichment    value of care work, 60      financial value of informal care, 12      high opportunity costs of caring, 16, 146      informal care as most important source of care, 2–3, 12–13    voluntarily assuming care obligations see voluntariness see also formal care Carers UK, 3, 13 Chandler, Adrian, 221 Chen-Wishart, Mindy, 225, 230, 233 children:   adult children:      as carers of parents, 227     doubting perceived rights of inheritance solely because son/ daughter, 143–44     family provision, 191–93, 195–99, 200–201     ‘lame ducks’, 192, 244     moral claims of, 117      potential for independence and claims, 145      under no legal obligation to provide care for parents, 16, 20, 149    care for, 189     caring for able-bodied children excluded from official definitions, 3    child of the family, 150, 174, 190–91, 197, 199–200    childcare responsibilities within families, 17    disabled children, 8–9, 184–85    family provision for adult children and children of the family, 150, 190–202     adult children, 191–93, 195–97, 200–201     care and conduct, 198–99      care and the deceased’s obligations, 195–97      child of the family, 190–91     judicial suspicions, 191–93      moral obligations owed by deceased, 195–97     New Zealand see under New Zealand     promises of provisions, 197–98      special case of a ‘child of the family’, 199–200

250  Index children (cont.):   inheritance:     harm potentially caused by disinheriting children, 143      humans predisposed to leaving legacy to their children, 143      moral claim on parent’s estate, 142–43, 145      natural right to succeed to parent’s estate, 139 Chin, NY, 222 Choudhry, Shazia, 210 Clark, Hilary, 155 Clements, Luke, 11 cohabitation and conjugal cohabitants, 29   carers, 37      ‘pure’ carers as eligible cohabitants, 162–67   family provision, 150, 155–56, 188–89, 203–4     inheritance and genuine dependence on deceased before death, 144–45     intestacy rules, 179   inter vivos provision, 207–8      centrality of conjugality in English law, 209–11    property reallocation, 15, 31    proprietary estoppel claims by:     appearing like ‘gold-diggers’ by bringing estoppel claims, 52     comparing with carers, 58–59     constructive trust, asserting proprietary interest through, 81     detriment, demonstrating, 55      detrimental reliance going beyond that reasonably expected, 59      different detriment levels for ‘mere’ cohabitee and ‘pure’ carer, 58     and reliance, 52–53   statutory cohabitation in Belgium, 211    statutory scheme for cohabitants, 96, 189    unjust enrichment claims, 129     carers in Canada, 133–34     value survived approach, 133 Commission on Funding of Care and Support (Dilnot Commission):    carers as foundation of care and support system, 2–3   establishment, 13    recommending capping of maximum lifetime contribution towards care, 19    reporting that system of formal social care inconsistent/unfit for purpose, 13    supporting Law Commission’s recommendations on entitlements of carers, 9–10

compensation principle, 18, 183 conclusion, 239–46    carers and private law, 239    the future, 245–46    limitations of statutory discretions, 243    measure of relief, 244–45    unconscionability of dealing, 239–40    unconscionability of outcome, 241–43 conduct:    family provision, 186–87     care and conduct, 198–99     conduct and contribution under the 1975 Act, 185–87   countervailing benefits in statutory enforcement of testamentary promises, 115–16    ‘promise’ made by conduct alone, 38   proprietary estoppel, 23, 48   remedial discretion, 70–71   unconscionability:      conduct and relationship of the parties, 48     perceived unconscionability of conduct towards carer, 17     relevant conduct must be unconscionable in the round, 34, 38     whether unconscionable conduct needed, 23   see also unconscionability conjugality see cohabitation and conjugal cohabitants contract law,   consideration, 21    contracts for sale of land, 65, 76, 77–78    ‘failed contract’ and proprietary estoppel, 43    failure of consideration, 126    implied contracts, 127    limitations of, 25–27     part performance, 26–27    proprietary estoppel circumventing requirements of a valid contract, 74–75    quantum meruit for work done in anticipation of a contract, 126    undue influence, 220    unjust enrichment, 126–27 constructive trust and carers, 21, 22, 28, 81–88    common intention constructive trust, 28, 52–53, 81–84      carers using to show common intention, 81–82     detrimental reliance, 86     evidencing common intention of shared ownership, 82–83

     express declaration of trust not displaced by arguments relating to, 80     nature of, 81      relevance of care to size of interest generated by, 83    conditional representations, 47    discretionary approach to quantifying beneficial interest, 73    estoppel giving rise to form of, 78    exempted from formality requirements, 77    institutional conception of constructive trust, 86    and proprietary estoppel and relevance of relationship to the carer, 84–88    remedial constructive trust, 86–87 Cooke, Elizabeth, 61, 90 countervailing benefits, 55, 66, 69–70, 196 Cretney, Stephen, 141, 210 Davey, Martin, 80 Davis, Christine, 242 de Groot, John, 177 Deech, Baroness R, 145, 210 Degeling, Simone, 124, 128 Delany, Hilary, 23, 56 dependants:   in Australia, 161–62    family provision, 189–90    ‘pure’ carers as see under eligibility of the ‘pure’ carer under Inheritance (Provision     for Family and Dependants) Act (1975) desert, concept of, 6–7, 14, 139–40, 174 detriment:   proprietary estoppel see under proprietary estoppel    proprietary estoppel claims by cohabitation and conjugal cohabitants:     demonstrating detriment, 55      detrimental reliance going beyond that reasonably expected, 59      different detriment levels for ‘mere’ cohabitee and ‘pure’ carer, 58   remedial discretion:     expectation and detriment, 67–70     proportionality between expectation and detriment, 67–68    ‘unconscionable disadvantage’ as alternative to detriment, 56 Devenney, James, 221 Dewar, John, 156 Dilnot Commission see Commission on Funding of Care and Support (Dilnot Commission)

Index 251 Direct Payments Scheme:    intention to increase use of Direct Payments/personal budgets, 11    mechanisms causing carers to resemble care workers, 4    purchasing care services by those eligible for social care 10–11     purchasing from relatives/partners often prohibited, 11 discretion:   remedial discretion see remedial discretion    statutory enforcement of testamentary promises, 115–16 discrimination:    associative discrimination, 8    disability discrimination, scope of, 8–9 Dixon, Martin:    proprietary estoppel, 43, 48, 73     formality rules, 77, 78–79 Douglas, Gillian, 129   family provision:     assumption of responsibility, 159     attitudes to will-making/family provision 140–41      living as spouses/civil partners, 162     relevant considerations in applications under 1975 Act, 181 Edelman, James, 218, 232, 235 Eekalaar, John, 138–39 Eichner, Maxine, 6–7, 8 eligibility of the ‘pure’ carer under Inheritance (Provision for Family and Dependants) Act (1975), 147–75    background to the 1975 Act, 148–52     centrality of testamentary freedom, 148–49     development of family provision, 149–50     distinctive features of Australian statutes, 151–52     modern English family provision, 150–51    ‘carer’ category for England and Wales, 172–75    example of a ‘carer’ category: New South Wales see under Australia    ‘pure’ carers as dependants, 152–62     an assumption of responsibility, 158–59      conclusion on dependency and carers in England and Wales, 159–61      dependants in New South Wales, 161–62      expansive concept of ‘full valuable consideration’, 154–58

252  Index eligibility of the ‘pure’ carer under Inheritance (Provision for Family and Dependants) Act (1975) (cont.):    ‘pure’ carers as dependants (cont.):     need to demonstrate maintenance, 153–54    ‘pure’ carers as eligible cohabitants, 162–67      conclusion on carers as cohabitants, 167      living ‘in the same household’, 165–66     living as spouses or civil partners/ importance of a sexual relationship, 162–64     the minimum duration, 166–67 Enonchong, Nelson, 224, 232–33 equal sharing, equality principle, 183–84 Equality and Human Rights Commission, 13 estoppel see promissory estoppel; proprietary estoppel Etherton, Sir Terence, 32, 73, 86 ‘ethic of care’, 5–6 family provision, 2, 28–29, 136–205   conclusion, 203–5    default rule in English succession law and legislative effects, 136    eligibility of the ‘pure’ carer see eligibility of the ‘pure’ carer under Inheritance      (Provision for Family and Dependants) Act (1976), 147–75    justifying the use of family provision law to recognise the carer, 138–47      implications of feminist arguments and a compromise, 146–47      including carers in pool of potential applicants, 147      provision for carers and expectant heirs see under wills and inheritance      succession law as ideal method by which to reward carers, 138–39      testamentary freedom and purposes of succession law see testamentary freedom    pure carers, eligibility of, 28    relevance of care provided to quantification of relief see relevance of care provided to      quantification of relief see also inter vivos provision Fehlberg, Belinda, 214 Fineman, Martha, 5–7    carers able to be owed greater obligation that conjugal cohabitant, 164    concept of desert, 6–7, 14, 174    care recipients owing individual debt alongside societal debt, 15

   choice occurring within constraints of social conditions, 17    testamentary provision, 146 flexible working requests:    by carers, 8–9, 11    and disability discrimination, 9 formal care, 5    funding, 145, 219      care recipients funding costs on meanstested basis, 18      local authorities charging for nonresidential services, 19     local authorities recovering payments for residential care, 18–19      transfers affecting funds and undue influence, 219, 233    protecting assets of those in need of care, 145 see also carers and informal care formality requirements, 26, 126    formalities and dispositions of interests in land, 26, 32, 77–78      contracts for sale of land, 65, 76, 77–78    formalities relating to wills, 76, 78–80    formality assurance, 43    functions of formality requirements, 76    policy reasons for formalities, 76–77    propriety estoppel circumventing, 76–80 free acceptance see under unjust enrichment Frolik, Lawrence, 143 Fuller, Lon, 76 funding see care funding Gardner, Simon:    proprietary estoppel, 33, 68, 73     and constructive trust, 84      criticisms of Robert Walker LJ’s dichotomy, 63–64     proportionality between expectation, detriment and outcome, 67     relevant factors affecting quantum, 70–72 Gay and Lesbian Alliance, 216 Getzler, Joshua, 126 Glennon, Lisa, 146, 184, 216, 244–45 Goff & Jones: The Law of Unjust Enrichment, 123, 126, 127 Gray, Kevin and Susan Francis, 21,    constructive trusts, 21, 22    proprietary estoppel, 32, 35–36, 86, 90     classifying cases, 35–36      and compliance with formalities, 78     ‘frustrated bargain’ and ‘frustrated expectation’, 85      revocability of testamentary gifts, 45     uncertainty, 43    unconscionability of outcome, 241

    ‘unconscionable disadvantage’ as alternative to detriment, 56    undue influence, 231 Graycar, Reg, 171, 215 Green, Kate, 151 Grotius, Hugo, 139 Gulliver, AG, 76 Handley, AJA, 57 Hannah, Frances, 142 Hayton, David, 79–80 Herring, Jonathan, 8, 12    family provision, 173–74   cohabitation, 210 Hopkins, Nicholas, 58, 62, 67 incontrovertible benefit, doctrine of see under unjust enrichment informal care see carers and informal care inheritance see under wills and inheritance inter vivos provision, 29, 206–16, 242–43    approach in Australia, 211–15, 242–43      recognition of caring relationships in New South Wales, 212–13     registration schemes, 213–15   conclusion, 215–16    position in England and Wales, 206–11      centrality of conjugality in English law, 209–11      view of English law Commission on eligibility, 206–8 see also family provision intestacy rules, 178 Ireland, 208 Izuhara, Misa, 146 Kerridge, Roger, 80, 89    family provision, 157      adult children’s claims, 192, 200     cohabitants, 173      more carer has done, the harder to claim as dependant, 160–61, 192      more virtuous siblings treated less generously, 192 Kortmann, Jeroen, 16, 25, 242, 244 ‘lame ducks’, 192, 244 Langbein, John, 76 Law Commission, England and Wales:    compulsory portions for family members, 149    doubts over distinction between carers and care workers, 4   estoppel, 33      contracts for sale of land, 78    family provision, 150–51, 153, 204, 243     assumption of responsibility, 159     carers, 174

Index 253     carers and testamentary dispositions, 140      children and adult children, 190–91, 200–201     cohabitants, 189     conduct, 186     divorce analogy, 182, 206      intestacy rules and carers, 179      living as spouses/civil partners, 164     maintenance/’full valuable consideration’, 155–56, 158–61, 176   inter vivos provision, eligibility for, 206–8    property redistribution on relationship breakdown, pure carers excluded, 29    Report on adult social care law, 9, 19    statutory scheme for cohabitants, 96    ‘substantial care on a regular basis’ provision, 5 Law Society, 207–8 Lewison, Sir Kim, 38, 40, 163    undue influence, 220, 222 Locke, John, 139 Lowe, Nigel, 181 Martyn, John Ross, 142–43 Matthews, Paul, 192 McFarlane, Ben, 61, 134 McGregor-Lowndes, Myles, 142 McKay, Stephen, 18, 145 Mears, J, 6, 16 Mee, John, 45, 81 Miles, Joanna, 178 Millbank, Jenni, 171, 215, 216 Miller, Gareth, 160 mistake see under unjust enrichment moral claims and obligations:    mere moral claims to a remedy outside bounds of proprietary estoppel, 37    moral claims of adult children 117    moral claims on defendant’s estate, 72    moral claims on parent’s estate, 142–43, 145    ‘moral claims’ relating to inheritance, legitimacy of, 143    moral compulsion to provide care, 17    moral obligations owed by deceased, 195–97 National Audit Office, 11 National Consumer Council, 140 necessitous intervention see under unjust enrichment Neuberger, Lord D:    constructive trust, 88    family provision and living as spouses/ civil partners, 162–63

254  Index Neuberger, Lord D (cont.):    presumption of advancement, 144    proprietary estoppel, 36, 39     domestic/commercial dichotomy, 36, 45     irrevocability, 46      requirements for disposition of land not bar to claim in equity, 43      uncertainty, 43, 44, 48, 77     unification, 34    unjust enrichment, 127 New Zealand:   family provision:      adult children’s claims, 194     claims against estates, 142     development of family provision, 149–50      as an important exception to general rule of testamentary freedom, 149      living as a couple, 164     maintenance, 177      sufficiency of family ties, 193–95    legislation to mitigate injustice caused by contract law requirements, 75   testamentary promise, enforcing see statutory enforcement of testamentary promises New Zealand Law Commission:    contributors, 95, 101–2, 118, 201, 204    Draft Succession (Adjustment) Act, 100, 101–5, 117–18, 134, 243    family provision, 243      for adult children, 193–94, 201   statutory enforcement of testamentary promises, 105, 243      beneficiary of the promise, 100      contractual and statutory claims to be heard concurrently, 96      priorities as between claimants, 117      promises of testamentary natures, 94      proposed reforms to the ‘promise’ requirement, 101–5      provision to support family members and payments to reward service, 145      reforms to enable claim to be made by a ‘contributor’ 95      remedy, proposed reform of, 117–18    unjust enrichment remedy, 28, 134 Nickel, Bruce, 177 Nield, Sarah, 79   statutory enforcement of testamentary promises, 93, 109, 119, 240   testamentary freedom, 148    unjust enrichment, 121 non-bargain cases see under remedial discretion

officiousness principle see under unjust enrichment Oldham, Mika:    financial burden on state in absence of informal care, 12    private law remedies for carers, 12, 14–16, 18      criticisms of Oldham’s proposal, 15–16, 146–47     encouraging care through private financial incentives, 14–15      restitutionary claims against the state, 12     ‘successional priority’ proposal, 14, 138, 146, 202       applying to pure carers and relatives, 15    public provision of care never being adequate, 12 Oosterhoff, Albert H, 119 Parkinson, Patrick, 68 part performance, limitations of, 26–27 Patterson, William, 91, 96–100, 116–17 Pawlowski, Mark, 61, 84 Pearce, J, 129 Peart, Nicola:   family provision:      adult children’s claims, 191, 193–94     claims against estates, 142      living as spouses/civil partners, 164     maintenance, 177      potential for harm from disinheriting children, 143      succession law, purposes of, 139–40, 142    statutory enforcement of testamentary promises, 118–19 Peel, E, 75 Pettit, Philip H, 79 Pigott, James, 165, 167, 188 Potter, Gary, 162 presumption of advancement, 144 private law support/remedies for carers, 1–2, 12–20, 239    evaluation of private law arguments in general, 18–20    limitations of state support, 12–14    Oldham’s proposal, 14–15      criticisms: altruism and the expectation of a remedy, 15–18    purpose, nature and measure of relief, 24–25 promises:    implied promise not to revoke representation, 45–46    non-binding promises, 46    promises of provision, 197–98

  statutory enforcement see statutory enforcement of testamentary promises   testamentary promise enforcement see testamentary promise enforcement promissory estoppel, 32, 33 property law claims, 2, 22, 27–28, 30–90    carers and the constructive trust see constructive trust and carers    limitations of estoppel, 88–90   proprietary estoppel see proprietary estoppel proportionality:   proprietary estoppel:      aim of ensuring proportionality to address unconscionability, 70     proportionality between expectation and detriment, 67–68      remedial discretion, 62, 67–68, 240    undue influence, 231–33, 240 proprietary estoppel, 21, 24, 27–28, 86    assertion of interests in land, doctrine not limited to, 33–34    assistance cases, 32    concluding comments, 80–81    conditional representations, 46–48, 58     change of circumstances, 47–48     constructive trusts, 47      reluctance to find assurance conditional, 46–47    and constructive trust see constructive trust and carers    decision whether claim made out not discretionary, 35    definition issues, 33, 34    detriment and unconscionability requirement(s), 53–60      as a benefit moving to care recipient, 54      comparing carers and other claimants, 58–60      consequences of the focus on unconscionability, 56–58      countervailing benefits, 55, 66, 69–70      detrimental reliance going beyond that reasonably expected, 58, 59      different detriment levels for ‘mere’ cohabitee and ‘pure’ carer, 58      link between detriment and assurance, 54–55     nature of detriment, 53–56     relationship between detriment and unconscionability, 56     remunerating/compensating carers for contribution, 53     rewarding/valuing care work, 60      type/extent of relevant detriment a question of fact and degree, 53–54      value of the expectation, 115

Index 255    elements of proprietary estoppel, 32–60     detriment and unconscionability requirement(s), 53–60      general nature and definition, 32–37     reliance requirement, 49–53     representation requirement, 37–49    express declaration of trust, displacing, 80    ‘feeding’ an estoppel, 41    general nature and definition, 32–37      application of the requirements, 34–35     basic principles, 33      capabilities of the doctrine, 32–33     classifying the cases, 35–36     importance of context, 36–37      mere moral claims to a remedy outside bounds of proprietary estoppel, 37      relevant property law in England and Australia, 33–34    increasing judicial recognition of importance of doctrine for carers, 30–31     origins, 32    legitimacy of proprietary estoppel, 74–80     circumventing formality requirement see under formality requirements      circumventing the requirements of a valid contract, 74–75    limitations of estoppel, 88–90    promissory estoppel, as sub-species of, 32, 33    reliance requirement, 49–53, 60      burden of proof of reliance, reversal of, 50, 51     carers, cohabitants and reliance, 52–53      mixed motives of the carer, 51      reasonable expectations for type of relationship, relevance of, 53     reasonable reliance on the representation, 49      remaining consequences of the reliance requirement, 51–52     softening the reliance requirement, 50–51   remedial discretion see remedial discretion    representation requirement, 37–49     acquiescence/silence, 38–39, 48      estoppel representation intended to be taken seriously, 39, 96–97      importance of a representation and its clarity, 37–40     overall consequences of requirement: dealings or outcomes, 48–49      relative’s representation and need for tacit consent, 40–41     representations and property, 41–44

256  Index proportionality (cont.):    representation requirement (cont.):     representations, revocability and conditionality, 44–48      representations as a series of events/ pattern, 40     vulnerable individuals, 40      who must make the representation, 40–41   revocability, 44–46      compensating claimant for unjustifiable change of mind, 46      implied promise not to revoke representation, 45–46     non-binding promises, 46     representations irrevocable if clear representation and unconscionability , 45      revocability of assurance as a key issue, 44–45    uncertainty, 41–44, 48, 66     certainty requirement precluding some carers from claiming a remedy, 44      change in nature of property after assurance made, 44      extent representation must relate to particular property, 41–43     ‘failed contract’ cases, 43      likely to affect satisfaction of the equity if not establishment, 43      limited amount of uncertainty not an impediment to an estoppel claim, 43    unconscionability, 48–49, 239–44      assessment affected by extent carer deserves to have expectation fulfilled, 38      central in determining relief as well as existence of claim, 62      conduct and relationship of the parties, 48      consequences of the focus on, 56–58     detriment, relationship with, 56     formality assurances in ‘failed contract’ cases, 43     nature of unconscionability remaining uncertain, 58      not itself sufficient to support an estoppel claim, 35     relevant conduct must be unconscionable in the round, 34, 38     renewed focus on, 35     required because proprietary estoppel is an equitable doctrine, 56–57      as root of an equitable claim, 40

    unconscionability of dealing and outcome, 22–23, 30, 31, 48–49, 57, 74     unconscionability relating to overall circumstances of the case, 57     unconscionability requirement(s) and detriment, 53–60     whether unconscionable conduct needed, 23    and unjust enrichment, 57–58 pure carers, 240    definition, 152    eligibility for family provision see under family provision   family provision see family provision   inter vivos provision see inter vivos provision    nature of, 4 see also carers and informal care quantification of relief see relevance of care provided to quantification of relief quantum meruit, 121, 124, 126–27, 129, 133 Reid, Dot, 194 relevance of care provided to quantification of relief, 175–203, 244–45    adult children and children of the family, 150, 190–202      adult children, 191–93, 195–97, 200–201     care and conduct, 198–99      care and the deceased’s obligations, 195–97      child of the family, 190–91     judicial suspicions, 191–93      moral obligations owed by deceased, 195–97     New Zealand see under New Zealand     promises of provisions, 197–98      special case of a ‘child of the family’, 199–200   carers and bona vacantia, 179–80   cohabitants, 188–89   dependants, 189–90    general principles governing relief, 175–78     carers and need, 177–78     meaning of ‘maintenance’, 177     problem with maintenance, 176    outline of English intestacy rules, 178–79    parties to a ‘close personal relationship’ in New South Wales, 201–2    potential need for a fundamental change, 202–3    relevant considerations in all applications under 1975 Act, 180–81    spouses and civil partners, 181–87

    conduct and contribution under the 1975 Act, 185–87      divorce analogy and care as a domestic contribution, 182–85, 206    spouses and civil partners, former, 187 reliance see under proprietary estoppel relief, purpose, nature and measure of, 24–25 remedial discretion, 61–74    Court’s discretion in satisfying the equity, 62, 66, 73     discretion not unfettered, 67      factors influencing exercise of discretion, 67, 70, 72    Court’s objective, 61–62    exercise affected by extent carer deserves to have expectation fulfilled, 38    nature of the remedy, 61   proportionality, 62      aim of ensuring proportionality to address unconscionability, 70     between expectation and detriment, 67–68    relevant factors, 65–74     bargain cases, 62, 65–66     conduct, 70–71     English non-bargain cases, 69–74     expectation and detriment, 67–70      legal or moral claims on defendant’s estate, 72     non-bargain cases and the Australian approach, 66–69    Robert Walker LJ’s dichotomy, 62–4, 74     criticisms of, 63–64     current status, 64    unconscionability central in determining relief, 62 remuneration:    remunerated carers and proprietary estoppel, 65    statutory enforcement of testamentary promises, 110–11    sufficiency of, 21 representations see under proprietary estoppel Ridge, Pauline, 221 risk-taking, 17, 124–25, 239 Rotherham, Craig, 242 Rowlingson, Karen, 15, 18, 145 Rundle, Olivia, 214–15 Ryan, Desmond, 23, 56 Scotland:    succession law, 194    Scottish Law commission, 143 Sheehan, Duncan, 25 state support for carers, 2, 3, 5–11, 15, 239

Index 257    current statutory recognition and support of carers in England and Wales, 8–11      benefits to carers and private law remedies, 10      carer’s right to an assessment of their ability to provide care, 8     direct remuneration approach, 10–11      flexible working requests see flexible working requests      importance of whether carer and care recipient live in same household, 11      support to carers from other services, 8    limitations of state support, 12–14    normative arguments relating to state support for carers, 5–7 social policy context and normative considerations, 2–20    statistics and definitions, 2–5 statutory enforcement of testamentary promises, 28, 90, 91–120, 240    background to New Zealand legislation, 91–93     courts’ benevolent/purposive approach to interpretation of requirements, 93   conclusion, 119–20    the promise, 93–101      beneficiary of the promise, 100–101     meaning of ‘promise’, 93–96     an objective approach, 96–97      relationship between the promise and the services, 97–99    proposed reforms to the ‘promise’ requirement, 101–4     conclusion, 104–5      factors justifying a remedy, 103     limitations on claims, 103–4      provision of a benefit, 102    the services or work, 105–11      failure to make provision, 110      importance of the relationship between the parties, 107–9      meaning of ‘services’ or ‘work’, 105–7     remuneration, 110–11    the remedy, 112–19      countervailing benefits and conduct, 115–16     criticism and proposed reforms, 117–19     discretion, 114–15     history and reforms, 112     possible orders, 113      reasonableness as overall aim of Court, 113      relevance of other claims, 116–17     relevant factors, 113–15

258  Index ‘successional priority’ proposal see under Oldham, Mika testamentary freedom, 18, 22    centrality of testamentary freedom, 148–49    certainty requirement preserving, 44    family provision an important exception to general rule of testamentary freedom, 149    potential for unearned distributions from estates, 143    previous recognition of importance of preserving, 30    and purposes of succession law, 139–40      freedom of testation as inherent in Natural Law, 139      relevance of deceased’s intentions in family provision claims, 141–42      security of the family, 142     welfare of society, 142      wishes of the deceased, 140–42    undermined by using family provision statutes to reward carers, 139 testamentary promise enforcement, 2, 24, 28    assurances needing to be clear and unequivocal, 39    failure of consideration, 125    family provision, 197    ‘promise’ made by conduct alone, 38    remedy where ‘more than a gratuitous promise’, 80   statutory enforcement see statutory enforcement of testamentary promises    Wills Act as instrument of fraud, using, 79 Thompson, MP:    proprietary estoppel, 27, 47, 51, 52, 72     and constructive trust, 84 Tilson, CJ, 76 Treasury Solicitor, 180 Treitel on the Law of Contract, 33 unconscionability:    limitations of statutory discretion in addressing, 243    perceived unconscionability of conduct towards carer, 17   proprietary estoppel see proprietary estoppel    unconscionability of dealing, 21–24, 30–31, 48–49, 225–26, 239–40, 243, 244      situations giving rise to, 20–21, 22–23      undue influence, 221     whether involving wrongdoing, 22

   unconscionability of outcome, 21–24, 28, 48–49, 241–43, 244     and family provision see family provision      situations giving rise to, 21, 22, 136 undue influence, 2, 21, 29, 217–38    actual undue influence, 222–23      difficulties of proof, 223     requiring proof, 222    applying the elements of presumed undue influence to care cases, 225–37      care generating a relationship of influence, 226–30     rebutting the presumption, 234–37     transfers calling for explanation, 230–34   conclusion, 237–38   counter-restitution, 237    effect of finding undue influence, 220    policy issues, 218–19    presumed undue influence, 222, 224     care generating the required relationship of influence, 228–30      classes of presumed undue influence cases, 226      classes where existence of influence must be proved, 226, 228–30      dependence required, level of, 229–30     establishing, 225     evidential presumption, 222      irrebuttable presumption of influence in pre-recognised relationships, 226–28     management of care recipient’s financial affairs, 229     presumption based on relationship between the parties, 222, 224     presumption not perfected until inexplicable transaction entered, 230     proportionality determining whether transaction calls for explanation, 231–33      when transactions call for explanation, 231    proceedings often initiated by care recipient’s estate, 217    rebutting the presumption, 234–37     independent professional advice, 234–35     transaction not improvident, 235–36   testamentary undue influence, 220–21     no presumption of, 221    unconscionable dealing doctrine, undue influence as subspecies of, 221    undue influence and informal carers, 219–25

     actual and presumed undue influence, 221–24      claimant or defendant oriented, 224–25      nature of undue influence, 220–21    whether involving actual wrongdoing, 23 unjust enrichment, 2, 7, 24, 28, 121–35    care services as enrichment, 122–24,      doubt whether providing care services would be relevant enrichment, 122–23     free acceptance preventing subjective devaluation, 124, 125      incontrovertible benefit doctrine, 123–24      ‘pure’ services able to constitute an enrichment, 123     subjective devaluation obstructing claim, 123–24   conclusion, 134–35    controversial as a remedy for caring services, 121–22   counter-restitution, 237    distinctive Canadian approach, 129–34, 204      claimant to show absence of juristic reason for retention of enrichment, 130      court’s discretion as to available remedies, 132–33      donative intent, 128, 132, 134     fee-for-services/value received approach, 133     joint family venture scenarios/value survived approach, 133      juristic reasons for an enrichment, 130–32      reasonable expectations of the parties, 130      used to provide remedy for carers, 129–30    and modern doctrine of estoppel, 57–58    nature of, 122      enrichment without more not giving rise to a remedy, 123    unjust enrichment in the domestic context in England and Wales, 128–29    the unjust factor, 124–28     failure of consideration/failure of basis, 125–27      free acceptance as unjust factor, 124, 125     mistake, 128     necessitous intervention, 127–28     need to identify, 124      officiousness principle, 127–28

Index 259     voluntarily-rendered services/ ’domestic risk-takers’, 17, 124–25, 239 Virgo, Graham:    undue influence, 224–25 unjust enrichment, 123, 125, 127–28 voluntariness, 7, 17   unjust enrichment see unjust enrichment    voluntarily assuming care obligations/ care as a gift, 17    whether decision to care is voluntary/ moral compulsion to provide care, 17 Walker, Lord R:    contracts for sale of land, 76    family provision, 190    proprietary estoppel, 42–43     acquiescence, 38      carers’ unique position, 60, 81     claims unable to be subdivided into water-tight categories, 34     claims where there is no land at issue exceptional, 34     comprehensive definition of proprietary estoppel absent, 33      and constructive trust, 85, 86–87      decisions and exercise of discretion, 35, 67, 70, 72     detriment, 56, 60, 68     dichotomy/’bargain’ and ‘nonbargain’ cases, 62–63, 65–68, 70, 72, 74, 90     dichotomy, criticisms of 63–64      dichotomy, current status of , 64      estoppel cases often founded on personal assistance to defendant, 30–31, 32     expectation, 67–68     irrevocability of assurances, 45     proportionality between expectation and detriment, 67     reliance requirement, 51      representation to be ‘clear enough’ in the circumstances of the case, 39     representations should relate to identified property of defendant, 41      synthesis and unification, dangers of, 36     uncertainty, 43–44     unconscionability, 55, 56, 57 Watson, Elizabeth, 6, 16 welfare state, 5, 10, 19, 239    England as, 12    informal care as invisible pillar of, 6

260  Index see also state support for carers Wells, Rosalyn, 16    proprietary estoppel, 54, 59    unjust enrichment, 121, 124, 125 White Paper: Reforming the Law for Adult Care and Support, 10, 13 Williams, Catherine, 162 wills and inheritance:    expectant heirs and carers, 142–46     children see under children      compulsory portions of estate for family members, 149s     see also family provision      doubt about perceived rights of inheritance solely because a child, 143–44, 145     expectations of inheritance     genuine dependence on deceased before death, 144–45      including carers in pool of potential applicants, 147      ‘moral claims’ relating to inheritance, legitimacy of, 143     potential for unearned distributions from estates, 143     presumption of advancement, 144     presumption that certain family members should inherit, 143

     provision for carers contrary to interests of those with familial claims, 142–43    and family provision see family provision   wills:     formality requirements of wills see under formality requirements     and gifts inter vivos, 138–39      property bequeathed based on formal ‘positions’ of beneficiaries, 140      reason for introduction of wills, 143     testamentary freedom see testamentary freedom     testamentary incapacity, 221     testamentary promise enforcement see testamentary promise enforcement     testamentary undue influence s undue influence      widespread knowledge of need for a will, 45, 97 Windram, Margaret, 165, 167, 188 Wise, Katie, 14, 15 Wong, Simone, 15, 208, 211 Woodward, H, 129 Young, Clare, 213 Zimmerman, Reinhard, 25