The cost of caring for the elderly and other matters
Bernadette Rogers v Andrew Wills
[2025] EWHC 1367 (Ch) / [2025] EWHC 1524 (Ch) / [2025] EWHC 1711 (Ch) / [2026] EWHC 2231 (Ch)
Ursula Wills, known as Sheila, died on 19 April 2020 aged 92 years. Sheila was a widow who was survived by six children. By her will she appointed her son, Andrew, to be her executor, and she divided her residuary estate equally between her surviving children, including Bernadette, known as Bern. For the last 30 months of her life, Sheila lived with Bern, a trained nurse, and her husband, Jon, a retired GP. Bern and Andrew had also been appointed by Sheila to act as her attorneys for financial purposes.
After Sheila’s death Bern withdrew £100,000 from Sheila’s bank account and disputes arose as to whether Bern should have done so and whether Bern was to be paid for the care provided and, if so, upon what grounds and in what sum.
Upon Andrew’s insistence, Bern was prosecuted in the Crown Court for theft but the jury found her not guilty and she was discharged. Bern then brought her claim for compensation against the estate. Evidence in support of Bern was given by Jon and their daughters. Evidence in support of Andrew was given by the parties’ four other siblings.
In the High Court on 6 June 2025, Circuit Judge Matthews decided that Sheila and Bern had entered into a contract for Sheila to be cared for at Bern’s home for a reasonable price. Judge Matthews found that Sheila had capacity to act, plainly intended to create a legal relationship with Bern and that both were in agreement as to what was to be done. The absence of specific price for the service was not a bar to there being a valid contract.
In addition, Judge Matthews determined that, even if there had been no contract, (a) Sheila’s words and conduct would have conveyed to any reasonable person that it was her intention to enter into a contract with Bern, and Sheila’s estate would have been estopped from denying – or prevented from going back on – her intention, and (b) Sheila’s estate had been unjustly enriched from the provision of a service provided by Bern that Sheila would otherwise have had to pay for privately.
Then, in the High Court on 7 July 2025, Judge Matthews decided that there was no reason for him to depart from the usual rule that the losing party, Andrew, should pay the costs of the successful party, Bern. Further, Judge Matthews stated that Andrew’s liability in costs was personal to him and not owed by the estate. Andrew had not sought permission from the court to defend the proceedings brought on behalf of the estate and, likely, would not have been given permission to do so because, whilst a beneficiary can argue a position, an executor is obliged to be impartial.
Lastly, in the High Court on 25 August 2026, District Judge Wales decided that at a daily rate of £150 over 850 days Bern should receive £127,500 from Sheila’s estate.
Comment
Although this decision may be appealed, this dispute is important for attorneys, unpaid care providers, their lawyers, other parties to a dispute and those who are not parties to a dispute.
For attorneys, their representative role ends with the death of the person they are acting for. In the absence of an agreement with Andrew, acting as Sheila’s executor, or court order, Bern had no right to access Sheila’s account following her death. It is likely that Bern was found not guilty of theft because she lacked the intention to steal from or defraud Sheila’s estate.
For unpaid care providers, what is important is less the contractual arrangement and potential estoppel and more the claim based in unjust enrichment. Sheila was found to have been enriched by the provision of a service that she had an opportunity to decline but did not. That enrichment came at Bern’s expense and it was unjust for Bern not to be compensated by Sheila or her estate because Sheila expected to pay for the services supplied and would otherwise have done so.
For other parties to a dispute, there is nothing wrong in arguing a contrary position, as Andrew did, but if claim or defence fails, the losing party is likely to be personally liable for a proportion of the costs of the successful party. Individuals who act in representative capacity do not have the same freedom to litigate as those who do not.
For lawyers and those who are not parties to the dispute, attention should be paid to documents sent in error. It is the practice for judges to send to the parties and their legal representatives a draft judgment before it is officially made public so that errors can be corrected and submissions prepared on consequential matters, such as a party’s potential liability in costs.
When sent, a draft judgment states that it is confidential to the parties and their lawyers and must not be shared with anyone else until officially made public. A breach of that embargo can lead to proceedings for contempt of court against a party and / or their legal representative, who is obliged to disclose any breach. In this case, Bern’s lawyers sent the draft judgment to Bern’s email address, which automatically forwarded it to Jon’s email address.
The judgment given in the High Court on 20 June 2025 does not indicate how Bern’s lawyers found out how the embargo had been breached, but Judge Matthews considered both Bern and Jon intelligent and criticised Bern for reviewing the draft judgment with Jon, and Jon for reading the draft judgment when he should not have done.
Simon Ingham qualified as a solicitor in Scotland and now practises in England. He is a partner who specialises in Inheritance, Probate, Trust & Will disputes. If you need advice about a dispute in England & Wales please contact us by phone on 0800 015 0340 or e-mail NewEnquiries-Litigation@chadlaw.co.uk.
