Moral duty and family provision

Date: Oct 01, 2012
Document Type: Newsletter

Any person who has a familiarity with matters involving family provision in Australia, may have either encountered the concept of ‘moral duty’, or have heard the term used in regards to such matters. The concept of moral duty and family provision legislation has become synonymous with one another that it would be a surprise to some that the term, ‘moral duty’, does not actually appear in any legislation dealing with family provision. Naturally, if moral duty has not been enshrined in legislation, where does the concept come from? Further questions may revolve around, how, and when, is the concept applied in regards to family provision. Traditionally, moral duty was seen to be a breach by a deceased who did not make an adequate provision for an eligible applicant, thereby, compelling the courts to intervene to order the appropriate provisions.

Moral duty and family provision

When analysing the concept of moral duty in regards to family provision, the initial test which first addressed the concept was set by the Privy Council in Bosch v Perpetual Trustee Co (Ltd):

“Their Lordships agree 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.”

One of the essential things to be aware of in regards to the test in Bosch, was it was not so much an objective test of what a wise and just person who is fully aware of all the relevant circumstances should do, but instead, the test required the court to place itself in the position of the testator.

The concept of moral duty was confirmed by a majority in the High Court in Vigolo v Bostin, with Gleeson CJ noting that the concept in relation to legislation is to be understood more as a ‘moral value’ rather than a legal right:

“In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description ‘moral’.”

 However, the New South Wales Court of Appeal has expressed some reservations about using the term ‘moral duty’, stating that the term can be misleading as the court has described in Nicholls v Hall and the Court in some cases, has settled for the term ‘moral claim’ instead.

What factors are considered in determining whether an adequate provision has been made?

Depending on the jurisdiction, a number of factors will be considered in determining whether adequate provisions have been made from the estate. However generally speaking, the considerations may involve matters such as the relationship between an applicant and the deceased, competing claims amongst the beneficiaries, the size of the estate, the financial needs of the relevant parties, and the character of the applicant may be just some of the considerations that a court may take into account.

Family provision law can be extremely complex. If you need any assistance with such matters, please contact a lawyer who will be able to help.

Bankrupt Estates
Date: May 02, 2010
Can I bequeath my heart?
Date: Dec 13, 2011
Can I write my own will?
Date: May 01, 2007
Capacity to make a will
Date: Jun 20, 2014
Caveats in Probate Proceedings
Date: Jul 24, 2014
Choosing your executor
Date: May 09, 2012
Coercion in making a will
Date: Sep 07, 2011
Court Made Wills
Date: Jul 21, 2009
Creating a Living Will
Date: Jun 06, 2011
Do I Need a Power of Attorney?
Date: Nov 01, 2009
Family Provision Overview
Date: Jul 16, 2012
Fixing errors in Wills
Date: Mar 28, 2012
Gambling away inheritance?
Date: Jun 18, 2012
He didn't leave me anything
Date: May 05, 2009
Informal and Stopgap Wills
Date: Nov 26, 2013
Life changes and wills
Date: Mar 12, 2013
Lost Wills
Date: Mar 21, 2014
Moral duty and family provision
Date: Oct 01, 2012
Obtaining Probate
Date: Feb 03, 2011
Organise Organ Donation
Date: Jun 04, 2010
Proper funeral planning
Date: Jan 31, 2013
Security for Costs
Date: Aug 08, 2010
Testamentary Capacity
Date: Apr 01, 2012
The Basics of Estate Planning
Date: Apr 01, 2011
The Curse of the Homemade Will
Date: Sep 18, 2014
The Guardianship Tribunal
Date: Feb 02, 2010
The Problem With Internet Wills
Date: Jun 18, 2014
The Will fundamentals
Date: Apr 05, 2009
What are Powers of Attorney?
Date: Jun 16, 2014
What can a will be written on?
Date: Sep 07, 2011
What is a “Benjamin Order”?
Date: Oct 04, 2013
What is a will?
Date: Jan 01, 2008
When should a will be changed?
Date: Feb 03, 2012
When should I make a will?
Date: Mar 01, 2008
Who will look after your pets?
Date: Nov 15, 2011
Witnessing a will
Date: Sep 07, 2011
Back to Publication List