Rogers v Wills [2025] EWHC 1367 (Ch)

Can a family carer be paid from the estate? Rogers v Wills [2025] EWHC 1367 (Ch)

This case addresses the enforceability of domestic caregiving arrangements through contract and, in the alternative, restitution. The article examines intention to create legal relations, the implication of a reasonable price under section 15 of the Supply of Goods and Services Act 1982, and unjust enrichment by free acceptance in claims advanced against estates.

Factual Background

Bernadette Rogers (the Claimant) is one of six adult children of the late Ursula (Sheila) Wills. In 2017, Sheila was a 90-year-old widow living independently in Norfolk. After a health scare in September 2017, where Sheila was found confused and wandering the road, the family agreed that Sheila would temporarily stay with the Claimant, a retired nurse, and her husband at their home in Bristol. During this stay, Sheila’s condition improved and she expressed a strong wish not to return to Norfolk with live in carers. Instead, in October 2017 she asked to live with the Claimant long term. Crucially, Sheila insisted that if she moved in with her daughter, she “wanted to pay her way” and that the Claimant would be “paid properly” for looking after her. The Claimant agreed to this arrangement. No specific amount or rate of payment was decided at that time; it was left open with the understanding that it would be resolved in the future. Around the same period, steps were taken to put in place Lasting Powers of Attorney for Sheila’s affairs, her son, Andrew Wills, the Defendant, ultimately became an attorney and later the executor of her estate.

From October 2017 until Sheila’s death in April 2020, Sheila lived with the Claimant, who became her primary caregiver. Over these two and a half years, Sheila’s health significantly deteriorated she was diagnosed with vascular dementia in 2018, as well as other serious health issues requiring extensive care. Sheila grew increasingly dependent on the Claimant for daily living and intimate care. The arrangement had a profound impact on the Claimant’s life: she could no longer take on paid work, such as prior childcare duties for grandchildren, and had to adjust her home and routine to provide 24 hour care. Throughout this period, the Claimant remained in regular contact with her siblings. Notably, the siblings repeatedly remarked that the Claimant should not be out of pocket for caring for their mother. Despite this, the Claimant did not receive or request any payment from Sheila during her lifetime.

Sheila Wills died on 19 April 2020. In the month after the death, the Claimant transferred £100,000 from Sheila’s bank accounts to herself, later explaining that this sum represented the costs/value of the care she had provided. As executor, the Defendant challenged these withdrawals, treating them as unauthorised. The situation escalated the Claimant was reported to the bank for suspected fraud, and the £100,000 was reclaimed by the estate. The Claimant was prosecuted for theft in relation to the funds. That criminal case concluded with the Claimant’s acquittal at Bristol Crown Court. With the family relationship in tatters, the Claimant then brought a civil claim against the Defendant, as executor of Sheila’s estate, to recover compensation for the care she had provided, either on the basis of an enforceable contract with her mother or, alternatively, under the law of unjust enrichment.

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Legal Framework: Contractual Obligation and Unjust Enrichment

The Claimant’s primary claim was that a contract existed between her and her late mother for the provision of care services, giving rise to an obligation on the estate to pay for those services. In the alternative, she contended that even if no contract was formed, the estate had been unjustly enriched by the free care she provided and should make restitution. The two areas involve distinct legal principles:

Contract Law: Generally it requires an agreement with offer, acceptance, consideration, and an intention to create legal relations. In family settings, courts traditionally presume that domestic arrangements e.g. promises between parent and child, are not intended to be legally binding. This presumption can be rebutted by evidence of a clear intent to create legal relations. Additionally, a contract should have sufficiently certain terms, though the law may imply terms such as a reasonable price if the parties intended to contract but left some details open.

Unjust Enrichment: A restitutionary claim that arises when one party has been enriched at another’s expense in circumstances that the law deems unjust. The standard formulation requires showing (1) an enrichment, (2) at the claimant’s expense, (3) that it would be unjust to retain. An unjust enrichment typically means an enrichment obtained via a recognised unjust factor, such as a mistake, duress, failure of consideration/basis, or free acceptance of an unrequested benefit. Unlike contract, unjust enrichment does not require a promise or intent to create legal relations, it is based on reversing unwarranted gains. In services cases, quantum meruit claims, if services were rendered without a valid contract, a claimant may seek a reasonable payment for the benefit conferred, provided a valid unjust factor is present.

In Rogers v Wills, the court had to determine first whether a binding contract to pay for care existed. If not, the court would examine if the estate’s retention of the benefit of nearly three years of care without payment constituted unjust enrichment. Key legal issues included: whether there was contractual intent in a familial context, whether the lack of an agreed price prevents an enforceable contract, the role of mental capacity, given Sheila’s dementia, in contract formation, and the applicability of unjust enrichment doctrines, particularly failure of basis and free acceptance, to the facts.

Claimant’s Position

The Claimant argued that an enforceable agreement had been reached with her mother. She relied on Sheila’s explicit promise in October 2017 that the Claimant would be “paid properly” for taking her into her home and caring for her. This, the Claimant contended, was not a casual family promise but a serious arrangement akin to an employment or service contract. She asserted that all elements of a contract were present: Sheila’s request to be looked after (offer), the Claimant’s agreement to do so (acceptance), the care services as consideration, and a mutual intention to create legal relations despite the familial context. The absence of an agreed figure for payment did not, in her view, invalidate the contract, the law would imply a quantum meruit, a reasonable remuneration, for the services. In support, the Claimant pointed to evidence of the family’s understanding that she would not undertake this onerous care without proper compensation. For instance, the Defendant himself had sent a message acknowledging that the Claimant was entitled to payment for the care provided. Other siblings likewise indicated that she should eventually be reimbursed so she was not out of pocket. This evidence, according to the Claimant, showed a shared expectation that her care was given in return for payment, not merely as a daughterly act of love.

In the alternative, the Claimant advanced a case in unjust enrichment. She argued that the estate had undeniably benefited from her years of unpaid care: Sheila’s needs were met without the estate having to pay for professional carers or a nursing home. This benefit was at the Claimant’s expense, as she gave up time, employment opportunities and incurred costs to look after her mother. It would be unjust for the estate to retain this benefit without payment, because the care was not intended to be a gift. The Claimant cited two overlapping unjust factors: failure of basis, meaning the expected basis on which she rendered care; that she would be paid; failed when no payment was made, and free acceptance, meaning Sheila freely accepted the benefit of care knowing her daughter expected to be paid, thereby implying an obligation to pay. Under either she sought restitution on a quantum meruit basis, i.e. a reasonable sum for the services. The Claimant noted that she initially self assessed £150,000 as the value of 950 days of care at roughly £150 per day, although the exact sum remained negotiable or to be assessed by the court.

Defence’s Position

The Defendant, Sheila’s son and executor, denied any legally binding contract was formed. He characterised the arrangement as a familial and compassionate one, devoid of contractual intent. The Defendant relied on the traditional view that agreements among close family members are presumed not to give rise to legal obligations. In his view, Sheila’s statements about paying her way were expressions of gratitude or informal assurance, not a deliberate contract. He noted that the Claimant never raised invoices or demanded payment in Sheila’s lifetime, suggesting that both parties understood the care was being provided gratuitously, or at least that any payment would be at Sheila’s discretion, perhaps as part of her will. Furthermore, the defence questioned certainty and completeness of any agreement: no rate or total sum was ever discussed, nor was any timeline or mechanism for payment fixed. This vagueness, he argued, was inconsistent with an enforceable contract.

The Defendant also brought Sheila’s mental capacity into issue. Given Sheila’s advanced age and her dementia diagnosis in 2018, the Defendant suggested she may not have had the legal capacity to enter into a binding contract in late 2017, or thereafter. If Sheila lacked capacity, any purported agreement would be void.

Regarding the unjust enrichment claim, the Defendant contended that no injustice was present. He argued the Claimant’s caregiving, absent a contract, should be seen as a voluntary act of familial affection, for which the law does not usually compel payment. Any benefit to the estate was not unjustly obtained, because the Claimant chose to provide care without a clear agreement on payment. The Defendant disputed the application of free acceptance, maintaining that this concept is not a firmly established unjust factor in English law, a view seemingly supported by some recent case law. He also implied that allowing such a claim could open the floodgates to litigation over family caretaking arrangements, which historically have been kept outside the scope of legal restitution. In summary , the defence’s position was that the Claimant had no legal entitlement to compensation, neither contractual nor restitutionary, and that the £100,000 she took after Sheila’s death was an unauthorised appropriation of estate assets.

Court’s Analysis and Decision

Capacity to Contract

As a preliminary issue, the judge addressed whether Sheila had the mental capacity to enter into a contract in October 2017. Under the Mental Capacity Act 2005 and common law principles, capacity is decision specific and time specific, and a diagnosis of dementia does not automatically equate to incapacity. HHJ Matthews stated that Sheila had executed a professionally drawn will in 2015 and registered lasting powers of attorney in 2017–2018, indicating she was considered capable of making important decisions during that period. He emphasised that simply because Sheila had given an LPA, one cannot infer she lacked capacity thereafter. In fact, creating a valid LPA requires capacity at the time of execution. Medical evidence showed Sheila’s cognitive decline was gradual; there was no proof she was unable to understand the nature of the arrangement in October 2017. The burden was on the party asserting lack of capacity to prove it, and that burden was not met. HHJ Matthews found that Sheila still possessed capacity when she made the arrangement with her daughter. He was “very far from satisfied” that Sheila had lost capacity by that date. Therefore, nothing in Sheila’s mental state precluded a valid contract from arising.

Intention to Create Legal Relations

The central issue was whether the mother and daughter intended to create legal relations when they agreed that the Claimant would care for Sheila in exchange for being “paid properly.” The court acknowledged the historical notion of a presumption against legal enforceability in domestic agreements, such as between parent and child or spouses. However, HHJ Matthews clarified that this is not a strict rule of law but rather a tendency that must yield to evidence. There is no automatic bar preventing family members from contracting; the question of intent is always one of evidence and context. The close relationship is a factor, but not determinative. The judge stated that the prevailing view that family arrangements are per se non-contractual is “wrong” and each case turns on its facts.

Examining the facts, HHJ Matthews concluded that “on the evidence Sheila plainly intended to create a legal relationship with the Claimant.” Several points underpinned this finding. First, Sheila was a person of sufficient means who “did not want charity”; her insistence on paying her daughter was a deliberate attempt to formalise the arrangement. She repeated this intention to multiple people, not only telling the Claimant, but also making it clear to the Claimant’s husband and even to other family members that her daughter must be “paid properly” for looking after her. Such explicit and persistent statements went far beyond casual remarks; they demonstrated an objective seriousness of purpose. Second, the nature of the arrangement itself was significant. This was not a trivial or short-term familial favour, like occasional babysitting or a brief stay. It was a major, long term caregiving commitment that involved considerable sacrifice by the Claimant, hard work, unsocial hours, and giving up other income opportunities. The judge noted, “This was not a short term family or social treat… It was an important long-term living arrangement, involving hard work and unsocial hours, and impacting considerably on [the carer’s] existing lifestyle.” The magnitude of the commitment made it more credible that some form of compensation was understood to be due, rather than it being entirely altruistic.

HHJ Matthews drew an analogy: if an unrelated third-party caregiver or care home had been engaged to look after Sheila, it would undoubtedly involve a contractual payment obligation. The fact that the caregiver here was Sheila’s daughter did not, in the judge’s view, justify a different conclusion in light of Sheila’s express wish to pay. He stated there was no sufficient reason to treat the arrangement as non-binding simply because of the family relationship .

The court applied the objective test for intention in contract law. Even if, hypothetically, Sheila had some private reservations, what matters is how her words and conduct would be understood by a reasonable person in the Claimant’s position. Objectively, Sheila’s insistence on payment conveyed a serious promise of remuneration, such that the Claimant was entitled to rely on it as a contract. In fact, the judge commented that if Sheila were to deny a legal intention after the fact, she would be “estopped from denying” it, given the clear outward appearance of a bargain. In summary, the court found a genuine intention to create legal relations, overcoming the familial presumptions. This made the agreement binding, provided the other contractual elements were satisfied.

Terms of Payment and Quantum Meruit

Having found an agreement to enter into legal relations, the court turned to the terms of the contract, particularly the issue of payment. It was undisputed that no fixed sum or rate was agreed in advance. The defence had argued this indefiniteness was fatal to contract formation. However, HHJ Matthews held that uncertainty about price is not necessarily an obstacle in contracts for services. English contract law permits parties to agree to pay a reasonable sum even if the exact figure is not settled at the outset. In other words, a contract can be binding with an open price term, so long as it’s clear that payment is due and there is a workable standard for determining it (here, reasonableness). The judge stated, “despite the apparent vagueness, a contract for a’ reasonable price is a perfectly good contract”. Where it is understood that remuneration will be provided but no formula is set, the law will imply a term that a reasonable price must be paid. This principle is reinforced by statute: section 15 of the Supply of Goods and Services Act 1982, applicable to contracts for services, provides that in the absence of an agreed charge, the recipient shall pay a reasonable charge for the services.

On the facts, the court had no difficulty in implying such a term. Sheila’s insistence on paying and the Claimant’s agreement to care for her on terms that she be paid made it clear that there was to be remuneration, just not quantified yet. Therefore, “all the elements of a contract…were present”, mutual assent, consideration, intention to create legal relations, and a definable obligation, to pay a reasonable sum. The judge expressly found that a contractual obligation to pay a reasonable sum for the care existed under the 2017 agreement. This meant the Claimant was entitled to be paid on a quantum meruit basis for her services, as a matter of contract law.

HHJ Matthews did not set a precise figure for the payment due. He deferred the quantum of compensation to either agreement by the parties or a further hearing. In his judgment, he encouraged the parties to negotiate or mediate the amount, given the court’s findings on liability. The Claimant had originally estimated her full claim at £150,000, for 950 days of care, but the final sum remained open. Importantly, the court’s ruling established the principle that the Claimant must be compensated, rejecting the notion that her care was a purely voluntary family act .

Unjust Enrichment and “Free Acceptance”

Although the contract finding was sufficient to decide the case, the judge went on to consider the unjust enrichment claim in the alternative. This was in part because the case raises novel points of law of public interest. The court’s analysis of unjust enrichment is one of the most significant aspects of the judgment, especially its endorsement of “free acceptance” as an unjust factor.

Sheila, and now her estate, was enriched by receiving nearly three years of full time care services, which allowed her to avoid or defer the considerable expense of professional care. That enrichment was squarely at the Claimant’s expense: she bore the burden and cost of providing the care personally, including giving up paid employment and incurring household adjustments for her mother’s benefit. Indeed, the judge enumerated how Sheila’s presence altered the Claimant’s life and home, demonstrating a direct expenditure of the Claimant’s time and resources for Sheila’s care. The Defendant did not seriously dispute these points. The real contention was over the third element: whether it would be unjust for the estate to retain the benefit without paying for it.

The Claimant’s case on unjust factors rested on two concepts: failure of basis and free acceptance. A failure of basis, also known as failure of consideration in restitutionary terms, occurs when a benefit is conferred on a particular condition or understanding that doesn’t materialise, rendering it unjust to keep the benefit. Here, the alleged basis of the Claimant’s services was that she would eventually be paid; if no payment is made, that basis fails. Free acceptance, on the other hand, focuses on the recipient’s conduct: if a person knowingly accepts the benefit of services that are offered with an expectation of payment, and does not reject those services when they could have, the law may deem it unjust for them to enjoy the free benefit without compensation .

The Defendant argued that free acceptance is not a recognised ground for unjust enrichment, leaning on recent authority that was skeptical of it. HHJ Matthews rejected the contention that free acceptance is not part of English law. He reviewed the authorities and concluded that free acceptance does have a role to play as an unjust factor under English law. He distilled the doctrine in clear terms: “a reasonable person who benefits from services rendered who should have known that the services were expected to be paid for but, having a reasonable opportunity to do so, did not reject them cannot deny having been unjustly enriched.” In other words, if you silently acquiesce to receiving valuable services that you know are not being given as a gift, you may be held liable to pay for them. The unjustness lies in the recipient’s failure to speak up and prevent the conferral of an unbargained benefit, effectively taking advantage of the provider’s expectation of payment.

The judge took care to differentiate free acceptance from failure of basis. In a failure of basis scenario, the unjust factor is that a condition of the benefit (an agreed purpose or understanding) has failed “the benefit was conferred on an agreed condition which has been falsified”, making it unjust to retain it. By contrast, in free acceptance, “the unjustness lies in the recipient not preventing the needless conferring of the benefit when [he] realised it was happening and that it was not free.” The two concepts can overlap, as here, where the understanding of payment failed and the recipient passively accepted the benefit, but the court treated free acceptance as the primary analysis in this case.

Applying these principles, the court had little difficulty finding that Sheila’s estate would be liable in unjust enrichment. Sheila knew,from her own words, that the Claimant expected to be paid, indeed, it was Sheila who initiated that expectation by insisting on paying. She had ample opportunity to refuse her daughter’s continued care or to clarify that she would not pay, for example, Sheila could have chosen to hire external carers or move to a care facility if she did not actually intend to pay her daughter, Instead, Sheila freely accepted the benefit of her daughter’s intensive care for years. Given those facts, it would be unjust for the estate to simply keep the benefit without compensating the Claimant. The judge based his unjust enrichment ruling on free acceptance as the unjust factor, concluding that the Claimant had met the test: she conferred substantial benefits, Sheila accepted them knowing payment was expected and without protest, so the estate cannot retain those benefits without payment.

This finding in unjust enrichment was essentially an alternative path to the same result. Had the contract claim failed, the unjust enrichment analysis indicates the Claimant still should win. In the end, both routes coincided in compelling the estate to pay a reasonable sum for the care received.

Evidential Findings

The outcome of the case was heavily influenced by the evidence and credibility of the parties’ accounts. HHJ Matthews largely preferred the Claimant’s evidence on the crucial points, finding it consistent with the surrounding circumstances and even partially corroborated by the Defendant’s own words. The court accepted that the October 2017 conversation occurred as the Claimant described, i.e. Sheila made clear she would pay for her care. The judge noted that the Claimant’s husband heard Sheila’s insistence on paying, and there was no evidence to the contrary. In fact, the Defendant did not call any of the other siblings to testify against the Claimant’s account or to suggest that Sheila intended the care to be a gift. The absence of contrary testimony from those who were in the family communications led the judge to draw a negative inference, it implied that their evidence would not have helped the Defendant’s case.

On the other hand, the Claimant’s narrative was bolstered by contemporaneous family communications. For instance, as noted, the Defendant had at one point sent a message effectively acknowledging the Claimant’s entitlement to payment for her care of their mother. This was inconsistent with the defence’s litigation stance that no payment was ever agreed or expected. Additionally, the repeated remarks by other siblings that the Claimant should not be left out of pocket gave credence to the Claimant’s position that everyone understood she deserved compensation. The judge found that the family’s conduct after Sheila’s death, in particular, the Defendant’s reaction to the Claimant taking £100,000, did not negate the existence of the prior agreement. Rather, it underlined that no payments had been made during Sheila’s life, which was exactly why the Claimant sought to reimburse herself afterward. The criminal acquittal was also noted; while not directly relevant to civil liability, it reinforced that the Claimant genuinely believed she had a right to the money and was not acting dishonestly.

The case reinforces the evidential requirements in such claims: capacity at the material time, unequivocal expressions of an intention to remunerate, and proof of the recipient’s knowledge that services were not gratuitous will be decisive. For clients, it offers both a caution and an opportunity: where substantial care is to be provided, the expectations and financial terms should be recorded contemporaneously to avoid reliance on posthumous reconstruction. Ultimately, the decision is a reminder that equity and contract will converge to prevent the unjust enrichment of an estate at the expense of a family member’s sustained and uncompensated commitment.

Related Pages

Speak to a specialist today. For clear advice on will, estate and inheritance disputes, call 0151 541 2040 or 0203 846 2862, email info@carruthers-law.co.uk, or send an enquiry.

This article provides general information only and does not constitute legal advice. The law and guidance may change and the outcome of any matter depends on its specific facts. You should obtain tailored legal advice before taking, or refraining from, any action.

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