Roger v Wills [2025] EWCH 1367 (Ch) - Proving Care for a Relative: Intention to Create a Contract and Unjust Enrichment
In this case, the High Court considered whether the deceased’s conduct amounted to an intention to create legal relations and whether unjust enrichment would be established through the principle of free acceptance. The dispute arose between Bernadette Rogers and Andrew Wills over the provision of services to their mother, Sheila and the expectation of payment.
Background
In summary, Sheila was 93 years old at the time of her death in April 2020. She was a widow with six surviving children (including Bernadette and Andrew), albeit she largely lived independently following the death of her husband in 2012.
In September 2017, Sheila’s neighbours found her in a confused state wandering the streets. Bernadette was a retired nurse and so it was agreed between the siblings that Sheila would stay with Bernadette and her husband. This was intended to be a temporary arrangement, however this became permanent at Sheila’s request. Sheila insisted that she would “pay her way” and wanted to ensure that Bernadette would be paid properly for looking after her, albeit there was no discussion regarding what the payment terms would be.
From October 2017 until her death, Bernadette and her husband cared for Sheila, the extent of which increased significantly as her health deteriorated. Sheila became mostly reliant on Bernadette for her day-to-day care.
Bernadette’s siblings were all aware of the arrangement and repeatedly insisted that she ought not to be out of pocket for the care that she was providing for Sheila. Up until Sheila’s death, Bernadette had not sought any payment or reimbursement of her expenses incurred in caring for Sheila.
Shortly after Sheila’s death, Bernadette arranged to transfer the sum of £100,000 to herself from Sheila’s bank accounts. Andrew, in his capacity as executor of Sheila’s estate, sought to challenge the transfer and claimed that it was unauthorised. Bernadette was prosecuted for theft but later acquitted.
As a result, Bernadette issued her claim in the High Court seeking payment of £135,000 from Sheila’s estate as compensation for the care that had been provided for her.
The Claim
Bernadette sought to argue that a contract had arisen between her and Sheila for the provision of care services, such that she required to be paid for those services from the estate. In alternative, Bernadette argued that the estate had been unjustly enriched by the free care that she had provided.
Contract
The first issue to be considered was whether Sheila had the requisite capacity to enter into a contract. Whilst Sheila had been diagnosed with dementia, it was noted that the question of capacity was not a “one size fits all” question, particularly as capacity can fluctuate on a day-to-day basis. Further, capacity ought to be considered specifically in the context of the decision made rather than as a generic question.
In the event that capacity could be established, the Court then had to consider whether Sheila had the requisite intention to create legal relations and if so, what was agreed in respect of payment to Bernadette.
HHJ Matthews commented that whilst it may have been thought that there was a presumption that there was no intention to create legal relations in domestic cases, this was wrong. Instead, it should be considered on the evidence available, with the relationship being only one element. In particular, if a third party had been engaged to provide care for Sheila, there would have been no question of a lack of legal relations.
In respect of the contractual price, HHJ Matthews stated that it is possible to contract to sell land, a good or service for a price which is unascertained at the time, so long as that price can actually be ascertained when needed. He further went on to say that a contract for a “reasonable” price is a perfectly good contract.
In the circumstances, HHJ Matthews was satisfied that “all the elements for a contract were present”.
Unjust Enrichment
HHJ Matthews then went onto consider the principle of unjust enrichment. To establish a claim for unjust enrichment, three elements must be proven:
- That the estate has been unjustly enriched; and
- That the enrichment was at Bernadette’s expense; and
- That the enrichment was unjust.
The first two elements were not in dispute, and it was largely accepted that by caring for Sheila, there had been significant changes to Bernadette’s life. This included making adaptations to her home and giving up care for her grandchildren. The provision of services by Bernadette was sufficient to demonstrate that the estate had been enriched.
However, the Court had to consider whether there had been an unjust factor in the enrichment: “failure of basis” and “free acceptance”.
Dealing with “free acceptance” first, ‘[t]he unjustness lies in the recipient not preventing the needless conferring of the benefit when that recipient realised it was happening, and that it was not free.’
In cases concerning “failure of basis”, ‘the benefit was conferred on an agreed condition which has been falsified. It is unjust not to return the benefit or pay its value.’
HHJ Matthews stated that Bernadette had conferred substantial benefits on Sheila where she accepted those benefits, having had the opportunity to decline them, and knowing that they were expected to be paid for. It was therefore held that Bernadette had made out her claim in unjust enrichment and was successful.
Final comments
This case serves as evidence of circumstances in which the Court will accept that provision for care services is recognised in a domestic setting, such that it is just to be paid for such services from the estate.
Much turned on the evidence produced by Bernadette and her siblings which sought to acknowledge the arrangement between Sheila and Bernadette, including various WhatsApp messages.