By Andrew Steele - 13 Dec 2018
When a family member (usually the parent) becomes elderly and/or
their health or mental capacity begins to fail, it is not uncommon
for one person (usually one of their children) to 'step-up' and
provide the care and assistance ('services') necessary for that
parent. To provide such services, some children even invite their
parent into or near to their home when the parent can no longer
'live independently'.
It does not follow that the child who 'stepped-up' (the 'service
provider') did so because they love their parent more than, say,
their siblings. It may reflect the fact that the child is
physically nearer to their parent and so is better able to provide
the services or they may be more temperamentally suited to
providing them.
This week, the Court of Appeal in Le Couteur v. Norris &
ors [2018] NZCA 572 held that a daughter who provided such
services to her parent could use the Law Reform (Testamentary
Promises) Act 1949 to require her mother's estate to 'make good' on
her mother's promise to reward her for the 'services' she provided.
In doing so, the Court held that the 'services' which qualified for
reward included such things as taking the parent to medical
appointments and ensuring medical advice is carried out and
medication taken. And it included practical things like doing the
cleaning, shopping and gardening for the parent who could no longer
do this themselves. It also included more personal and intangible
things such as providing comfort, companionship and support.
When services are provided in a family context, a difficult
question arises: are the 'services' no more than one might expect
of a loving daughter or son in a close family relationship or do
the services go 'over and above' the norm? Under the Act only
those that go beyond the norm qualify for 'reward'.
The Court stated:
In the present case [the
daughter] provided companionship, family life, support and
affection well beyond the bonds of that of a dutiful daughter.
While it is not a comparative exercise, [the daughter's]
care for her mother enabled her brothers to lead their own
separate lives without them having to concern themselves about
[their mother's] care.
The litigation team at Martelli McKegg are pleased to have
assisted the daughter in this case to a satisfactory outcome. The
hope is that where an ailing and or elderly parent wishes to reward
those who help them in their time of need, the law may be available
to see those wishes are done.
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