Claims In Probate II — Personal Services

“If you take care of me for the rest of my life, I will leave you (fill in the blank).” When what was promised is not delivered, a claim against the Probate Estate results. Claims for personal services rendered to the decedent by the Claimant while the decedent was alive are very common, but they are some of the most problematic of all claims. Such a claim is essentially a “contract” claim. It may be based on either a written or oral agreement. The agreement may be express or implied, implied in fact or implied in law.

As in many areas of Probate law, we start with a presumption, which may decide the case. Where persons live together as members of one family (or for their “mutual benefit”) and where nothing more appears than the rendition of such services, the services are generally “presumed” to be gratuitous. The family relationship which gives rise to the presumption may be one of blood or one of mutual dependence of the family members. The presumption that the services were gratuitous diminishes in direct proportion to the degree of remoteness of the relationship and the nature of the duties performed.

Many factors rebut the presumption that the services were gratuitous. They include: the existence of an express contract; the existence of an oral promise to leave property by will or an invalid or ineffective agreement or instrument showing the Decedent’s intention to pay; facts or circumstances which in their nature justify an inference of an actual understanding of the parties; circumstances which are so exceptional as to rebut the presumption; failure or inability to make return either in kind or otherwise rather than reciprocity in services; enhancement of the Estate of the decedent by the work performed; services rendered beyond those of an express agreement; extraordinary services certainly not incident to any normal domestic relationship; actions taken by the Claimant in reliance upon the purported agreement to the Claimant’s detriment; financial condition of the parties; and more. Each case turns on its particular facts. In order to avoid the presumption, the claimant must overcome the presumption. If the presumption is overcome, it vanishes, and trial is de novo.

The burden of proof is on the Claimant to prove the contract or agreement. Once that burden has been met, the burden shifts to the Estate to prove any claimed payment or completion of the contract on behalf of the decedent. The Claimant has two key hurdles to overcome in proving any claim for personal services: the Dead-Man’s Act and the Hearsay Rule. It may be difficult or impossible for the Claimant to prove an express agreement with a decedent without direct testimony by the Claimant of the decedent’s statements or promises. Many claims which would otherwise be and should be allowable cannot be proved or sustained because of those evidentiary rules.

Even if the Claimant cannot prove the express agreement, he may still may be able to prove a claim in quantum meruit for the reasonable value of the services. Where services are rendered by one person to another in the absence of a family relationship which are knowingly and voluntarily accepted, the law presumes that the services were given and received in the expectation of being paid for and implies a promise to pay their reasonable worth. Quantum meruit may not yield as great a benefit as was promised, but is beats getting nothing.

Statutory Custodial Claim

Effective January 1, 1989, a new Section 18-1.1 was added to the Probate Act. The “Statutory Custodial Claim” was apparently enacted to remedy the injustice of family members who rendered services and then were unable to prove the agreement with the Decedent or the value of the services. One of a list of enumerated family members who dedicates himself or herself to the care of a disabled person by living with and personally caring for the disabled person for at least three years is entitled to a claim against the Estate upon the death of the disabled person. The decision on the claim shall take into consideration the Claimant’s lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the disabled person. The claim is in addition to any other claim, including without limitation a reasonable claim for nursing and other care. The claim is to be based upon the nature and extent of the person’s disability and, at a minimum but subject to the extent of the assets available, shall be in amounts set forth in the statute, ranging from $180,000 for a person who has 100% disability to $45,000 for a person who has 25% disability. However, the court may reduce the amount “to the extent the living arrangements were intended to and did in fact also provide a physical or financial benefit to the claimant” based on factors set forth in the statute. The amount of any award is also “subject to the extent of the assets available” in the estate.