If an aging family member can no longer be cared for at home and has to move into nursing home care, does the role of “carer” provided by a younger family member at home, cease?

This issue was considered in a recent Supreme Court decision concerning a carer bequest in the will of Maria Dimitrijevic, who was born in Serbia and lived in Australia.

iStock 1189188586Maria died on 2 June 2017 at the age of almost 97 and was living at Carnsworth Nursing Home in Kew in inner Melbourne. Maria had not married and had no children but was survived by her two nieces Maja and Aleksandra.

On admission to hospital in August 2015, staff there – concerned she may no longer be capable of caring for herself – applied to VCAT for an assessment of that capacity.

The tribunal ultimately determined she was able to make decisions about own welfare and declined to appoint anyone to administer her care.

Maja – Maria’s niece – had already arrived from Serbia and had been helping care for Maria in her home. Maria was also receiving some in home care from Vasey RSL.

After the tribunal proceedings had terminated, Maria appointed Maja as her attorney for medical matters and also made her will in which she left a carer bequest of the residue of her estate as follows:

“…to my niece MAJA BELESLIJIN-DARABOS…if she is my carer at or just prior to my death BUT if she should fail to survive me or is no longer my carer then to ALEKSANDRA TIMAROV after the payment of $100,000 to MAJA BELESLIJIN-DARABOS”.

The words in italics were handwritten annotations inserted as requested by Maria at the time the will was being signed.

Maja’s care provided to Maria at the time the will was made involved housework, shopping, cooking, laundry, some self-care for Maria, companionship including Serbian conversation, going on day trips, accompanying MAria to medical appointments, spending time with Maria in hospital and liaising with third parties.

Maja negotiated three extensions to her visa but was required to depart Australia in September 2016 to return to Serbia, and as a result Maria had to move to Carnsworth nursing home.

Returning to Australia in May 2017, Maja immediately began attempts – vetoed by medical personnel due to the patient’s age – to have Maria released to in-home care.

Maja visited daily and assisted with Maria’s care as far as the nursing staff permitted by doing her laundry, preparing coffee and tea, taking Maria for walks, bringing home cooked meals, providing companionship and liaising with third parties as Maria’s attorney.

On Maria’s death, her executors sought a ruling from the court as to whether or not Maja qualified as the deceased’s “carer” under her will.

Associate Justice Ian Irving had to consider – whether having regard to the change in the deceased’s place of residence at the date of death – whether Maja was still a carer “at or just prior to my death” as specified in Maria’s will.

The executors opposed that proposition and submitted that Maja’s role at the date of death was different to that performed at the time the will was made such that she no longer qualified for the carer bequest.

Maja was not at that time the deceased’s sole carer but rather – they submitted – performed a supplemental role to the extent the nursing home permitted.

Aleksandra supported that contention, arguing that Maria’s residence at the nursing home – rather than in her own home as Maria had wanted – nullified Maja’s carer role altogether.

Maja on the other hand asserted that to qualify as “carer” she was not required to be the sole carer in Maria’s own home.

The provision of companionship, supplemental care and conversational Serbian were sufficient for the purposes of the will.

The court agreed in part because the niece had not been – because of the involvement of Vasey RSL – Maria’s sole carer even at the time the will was made.

Nor did His Honour agree that the care provided by Maja at the date of death had to be “necessary” as the executors submitted.

His Honour also found that it was not essential for Maja to be seen as Maria’s in-home carer as Aleksandra had maintained.

Favouring Maja’s submissions, His Honour held that the duties undertaken at the date of the will and at the date of death “remained remarkably similar in nature”, although being undertaken at different locations.

His honour further held that although there was a change in the extent of the duties being carried out, such change was insufficient to justify a conclusion that Maria’s niece was no longer fulfilling the role of carer at the nursing home.

His Honour was thus satisfied that Maja met the description of carer “at or just prior to” Maria’s death such that she was entitled to receive the residue of the deceased’s estate.

Note that the clause under consideration by the court arose from changes made to the will after its preparation and just before signing.

The case demonstrates the dangers of such a practice. When will terms are created in a hurry – with or without the assistance of solicitors – unintended results can emerge.

Executors should always seek legal advice when considering the terms of a will and how to properly distribute the estate pursuant to that will, especially where terms have been included last minute.

Re Dimitrijevic; Natoli & Anor v Beleslijin-Darabos & Anor [2022] VSC 198 Irving AsJ, 21 April 2022