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Kevin O'Flaherty

In this article, we’ll discuss what an Implied Agreement is versus an explicit or contractual agreement, some factors the courts look at when determining the validity of an implied agreement, how whether the caregiver is related to the decedent affects claims, and what evidence is needed to overcome a presumption of gratuity.

Claims based on implied agreements have long been a thorn in the side of quick, painless litigation. Trying to prove that an agreement exists between two or more parties without a written contract can be difficult, especially in the case of a probate claim, when one member of the agreement has died. Generally, when terms are agreed upon, written down, and signed the agreement becomes an explicit contract. Also, in the absence of a document stating the specific terms, if it can be proven the two parties discussed the terms and came to an agreement, the argument can still be made for an implied contract or explicit agreement. Typically, the terms, conditions and ultimately the validity of an implied agreement will be confirmed by the actions of the parties involved. A simple example of an implied agreement might be you speak with a friend or acquaintance at length who is a home decorator, he or she suggests a number of improvements to your home and even drafts up a simple design blueprint. Under “implied by law” even though you didn’t explicitly discuss payment of the service rendered by the decorator you could still receive a bill and be required by law to pay.

Determining the Validity of an Implied Agreement

  • Kin or Family Relationship Between the Parties - If the parties involved are unrelated (normally the courts are looking at 1st and 2nd degrees of relation, such as a spouse, sibling, parent, child, niece, 1st cousin, etc) then it’s more likely the court will favor the implied agreement;
  • If the receiving party asked for the services or made no attempt to deny services - This point seems straightforward and the court would normally favor the implied agreement, but in the case of the receiving party being physically incapacitated and unable to make decisions for themselves the court would look at the role of the guardian if they were not also the caretaker;
  • Frequency and scope of care - How often the care was done (daily, weekly, etc, or no discernible frequency) and what was done will be evaluated when determining the validity of an implied agreement of care.

Many probate claims dealing with an implied agreement for care involve two or more parties with an existing relationship, usually a relative. The timetable for the establishment of the implied agreement is often disputable and the scope of care frequently changes over time. A case can be further complicated if the parties involved were sharing the same dwelling and/or sharing living expenses. In Illinois, the courts more easily support an implied agreement claim when the parties are unrelated and often services by family members are generally presumed to be rendered without expectation of payment. Below are some examples of implied agreement claims in Illinois and their rulings.

  1. Two nieces provided care for an aunt who lived with one of the nieces. Upon the death of the aunt, the nieces both filed implied agreement claims against the aunt’s estate for compensation. Initially, because of the relationship between the parties the case was dismissed, but after moving to the appellate court it was determined that the nieces were to be compensated based on the testimony of third parties stating the aunt wanted the nieces to be compensated.
  2. In a case involving a near-familial relationship, the claimant lived in some capacity with the decedent for over twenty years, providing services such as carpentry, upholstery, etc, and in the decedent’s time of illness, some form of care giving. When examining the two parties’ relationship further it was found they often celebrated birthday parties together, exchanged gifts, and the claimant went to many of the decedent’s family member’s funerals. The court found that the claimant and decedent shared a near-familial relationship and viewed the care as gratuitous. Once the assumption of gratuity is raised, it becomes the claimant’s responsibility to prove otherwise.

Overcoming the Presumption of Gratuity

An expressed or implied contract will typically be enough to overcome the presumption of gratuity in the eyes of the court. Some other factors relevant in reversing the presumption of gratuity include:

  • Circumstances under which the claimant first began providing services to the decedent;
  • The decedent’s failure to reciprocate through money or exchange of services in kind;
  • The effect of the claimant services on the decedent’s estate;
  • The degree of the services rendered by the claimant, specifically if they go far beyond what is normal for a domestic relationship;
  • The financial situation of the parties involved
  • Any language in the decedent’s trust or will, involving the claimant

The important lesson to learn from this article is that it is that if you find yourself suddenly taking on caregiver duties, even for a family member, and you’re concerned about appropriate restitution now or in the future, it is best to have at the very least a simple contract written up and signed by all parties involved.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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