One daughter gave up her career to look after her mother through ten years of decline. Her brothers visited at Chinese New Year and sent money. Their mother told her many times, “The house will be yours.” The will, made fifteen years earlier, divides everything equally.
Filial duty is a strong value in Chinese families, and it is often carried unequally. When the estate does not recognise that, the carer may have more than one way to ask the court to step in.
Possible claims
- Family provision. As a child of the deceased, the carer can argue that the will did not make adequate provision for her, given her sacrifices, lost earnings and current needs.
- Promises relied on (proprietary estoppel). If the parent promised property, and the carer relied on the promise to her detriment, for example by giving up work or not buying her own home, the court may hold the estate to the promise, or award compensation.
- Payment for services. In some cases, a claim may be made for the value of care provided on the understanding that it would be paid for.
These claims are fact-heavy. Evidence of what was said, when, and in front of whom matters a great deal. So do care records, medical appointments and the carer’s financial sacrifices.
The siblings’ side
Other children often see it differently: the carer lived rent-free, used the parent’s money, or exaggerates the care. Accounts of the parent’s finances during the care period often become central, particularly if the carer held a power of attorney.
Planning for it
- If one child is caring for you, update your will to reflect it, and say why.
- Put arrangements in writing: whether the carer pays rent, whether they are paid for care, what they will receive.
- If a child holds your power of attorney, ask them to keep records, and consider an independent check.
Frequently asked questions
Can a child who cared for a parent claim more from the estate?
Possibly. As a child of the deceased, a carer can bring a family provision claim arguing that the will did not make adequate provision for them, given their sacrifices, lost earnings and current needs. Depending on the facts, there may also be a claim based on promises relied on, or for the value of care provided.
What is proprietary estoppel in an estate claim?
Proprietary estoppel is a claim based on a promise. If a parent promised property and the carer relied on that promise to their detriment, for example by giving up work or not buying their own home, the court may hold the estate to the promise or award compensation instead.
What evidence does a carer need to support an estate claim?
These claims are fact-heavy. Evidence of what was promised, when and in front of whom matters a great deal, along with care records, medical appointments and the carer’s financial sacrifices. The parent’s finances during the care period are often examined closely, particularly if the carer held a power of attorney.
How can a parent plan fairly for a child who is their carer?
Update your will to reflect the care and say why. Put the arrangements in writing, such as whether the carer pays rent, whether they are paid for care and what they will receive. If the carer holds your power of attorney, ask them to keep records and consider an independent check.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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