Clarifying ‘moral duty’ in family provision claims

Published 23 Jan 2014

Australian law allows anyone to leave any part of their estate to anyone they wish, and it also enables some people to make a claim that they deserved a larger share of what was left in the will.

However, these cases are rarely cut and dry. Although family members can challenge a will, the court has high power when it comes to deciding whether a testator has breached his or her moral duty to adequately provide for members of their family.

This creates a blurred line between what’s actual legislation and what is more of a concept that courts typically adhere to. The truth is, there are no laws in place anywhere in Australia that say a person must fulfill a moral duty. However, courts will almost always keep moral duty in mind any time someone files a family provision claim.

This makes it difficult for many to understand how the court goes about deciding what constitutes a breach of moral duty if there is no existing legislature on the topic. To answer this requires looking at older cases that set a precedent.

The rise of moral duty in family provision claims

The earliest indication of moral duty can be traced back to a case in 1938, when the court agreed that “in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father”.

This established that a judge should not only think theoretically about what an ideal testator would do, but what the person in the case, given all the circumstances, would do.

Fast forward to today, and now there are several factors that judges use to determine whether a testator made adequate provision for family members.

These include the share of the deceased’s estate that was allotted for maintenance and support, the relationship between the deceased and the family member after the last will was written and whether the will provides enough for the ex-partner or children from an earlier marriage.

To learn more about family provision claims and their relationship to moral duty, get in touch with contesting wills lawyers in New South Wales.

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