Britain’s ‘sandwich generation’ (adults in their 40s to 60s) are so-called because they are increasingly funding their parents’ care costs while still supporting their own children. New research from Killik & Co indicates that this generation now diverts around 44% of their monthly income towards the care and support of their parents. Judith Swinhoe-Standen and Rose-Marie Sage examine why members of the sandwich generation who take on a caregiving role may find themselves facing inheritance disputes when a parent dies, and what can be done to reduce that risk. This article was originally published by Today’s wills and probate.
Some parents might wish to reward a caregiving child by bequeathing them a larger proportion of their estate than any non-caregiving siblings, or by conferring a benefit on them during their lifetime.
Unfortunately, these well-meaning gestures can inadvertently spark a legacy dispute when this inequality between siblings comes to light.
Undue influence
If a caregiving child receives a larger share under a will than their siblings, those siblings may become suspicious that the caregiving child has procured this by exercising undue influence over their ailing parent. Those suspicions can be magnified by the fact that the caregiving child inevitably spends more time with the parent, often behind closed doors. This can lead the other siblings to assume that the caregiving child took the opportunity to seek a personal benefit at their expense.
The case of Rea v Rea illustrates this. The deceased, Anna, made a will in 2015, leaving her house to her daughter, Rita, who had been her primary carer, with the remainder of her estate left equally to Rita and her three brothers. This departed from the will Anna had made in 1986, leaving her estate to her children equally.
Anna’s three sons challenged the will, alleging undue influence, and were successful in the High Court. However, the Court of Appeal held in 2024 that undue influence had not been proven as there was no direct evidence of coercion by Rita. The court emphasised that Anna’s vulnerability did not automatically lead to the conclusion that she was unable to make her own decisions, and Rita’s “forceful personality” did not amount to undue influence. For coercion to be proved, it must be “more probable than any other explanation” for the will’s terms. Generally speaking, the court will proceed on the basis that undue influence is “inherently unlikely” until proven otherwise.
This shows that while the court may recognise that isolation and family tensions can fuel allegations, clear evidence of coercion over mere opportunity or motive is required to succeed in an undue influence claim.
Capacity challenges
Capacity challenges can also arise where a caregiving child is left a greater proportion of the estate than their non-caregiving siblings. It is not uncommon for an elderly person needing physical care to be showing signs of mental decline and waning capacity. It is not a great leap of logic for family members to jump to a conclusion that the testator lacked capacity to execute their will and argue that the additional benefit conferred on the carer child in the will is invalid.
However, it is important to remember that the courts do not infer incapacity from diagnosis or dependency alone. Capacity is decision- and time-specific, and in the case of will-making, the Banks v Goodfellow test is applied. This means that even if a testator lacks capacity to make some decisions, they may still have capacity to make a valid will, including the decision to benefit one child over another.
In practice, capacity allegations are frequently coupled with undue influence, as a person beginning to lose capacity may be more vulnerable to influence.
Carer contracts
Some families seek to avoid testamentary challenges by formalising care arrangements into a contract.
In Rogers v Wills [2025], the deceased, Sheila, moved in with her daughter Bernadette, having said that she wished Bernadette to be compensated for providing care to her. Accordingly, after Sheila’s death, Bernadette withdrew £100,000 from Sheila’s bank account. The executor, Andrew, discovered these withdrawals and reported Bernadette to the police. She was prosecuted for theft but ultimately acquitted.
Bernadette subsequently sued the estate in contract (for providing care to Sheila) and unjust enrichment (on the basis that Sheila’s estate had been unjustly enriched by Bernadette providing care). The court held that there was a binding contract, rejecting any presumption that family arrangements cannot be contractual. In the alternative, the court found that the estate had been unjustly enriched by Bernadette’s provision of care to Sheila.
This case shows that care contracts among family members can be valid and enforceable, but Sheila would have been well-advised to formalise the contract to reduce the scope for challenges.
How to avoid a challenge
A caregiving child whose greater legacy is challenged by their siblings may feel that this adds insult to injury: caring can be hard, and now they are being accused of dishonesty. There is even a risk that the prospect of claims being levelled at a caregiving child after their parent’s death puts people off caring for their elderly parents altogether.
Testators should be made aware of these risks and put safeguards in place to avoid challenges later down the line. For example, they can explain the reason for the unequal division of their estate in a letter of wishes and also express those wishes to their children during their lifetime. If a testator wishes to implement a carer contract or provide financial compensation to their caregiving child during their lifetime, they should do so with the benefit of legal advice.
Caring responsibilities are not only becoming more prevalent as the population ages, but also more expensive. Although there is no way to be sure of avoiding a will challenge in these circumstances, testators should take meticulous steps to explain their testamentary decisions to prevent sibling battles after their death.
