Is there a ‘moral duty’ compelling a person to make a family provision for relatives?

by The FindLaw Team

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 things 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.


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