Is there a moral duty for a deceased to make provisions to family members?

Date: Jun 01, 2012
Document Type: Newsletter

It’s probably safe to assume that many of us will make the appropriate provisions from our estate to family members in the event of our passing without too much issue. However, there may be instances where a person may not wish to make the appropriate provisions to family members for whatever reason they may be, and if such a thing does occur; is there a moral duty for family members to make the appropriate provisions? Furthermore, can the courts compel individuals to fulfil a ‘moral duty’ in providing for family members? The question of morality and making the appropriate provisions from an estate to potentially eligible recipients is an interesting question indeed.

Moral duty and the law

Let’s establish from the outset that no piece of legislation in any jurisdiction within Australia compels a person to fulfil a ‘moral duty’ to make provisions to family members. However, the courts have traditionally applied the concept of a moral duty in regards to applications made under family provision legislation, so as a consequence, the question to be asked is: How do the courts determine ‘moral duty’? In Bosch v Perpetual Trustee Co (Ltd) (1938) 38 SR (NSW) 176; 55 WN (NSW) 176; AC 463 (Bosch) at 478-479, the Privy Council put forward the following test in relation to the concept of moral duty:

“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.”

What should be noted in regards to the Bosch formulation is that the court will assume the position of a testator rather than applying a fully objective test of what a ‘wise and just’ father (or mother) that has a full awareness of all relevant circumstances would do in the specific situation.

The notion of moral duty was questioned by some, especially when legislation made no specific reference to the concept, however, the High Court in Vigolo v Bostin confirmed that moral duty may be applied in regards to family provision, with Gleeson CJ noting that the concept historically arose due to the lack of legal rights – although, a testator still had the right to dispose of their estate as desired, and anyone who has been excluded had no legal right to inherit.

Gleeson CJ also observed that family provision legislation did not necessarily confer new rights, but rather, gave the courts the discretionary power to make orders which would have an effect of altering the provisions within the will and modifying the statutory rules. Ultimately, Gleeson CJ concluded that that family provision legislation is to be understood via the prism of obligations owed to family members or ‘moral values’, rather than legal rights.

His Honour went on to further note that:

“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 meaning of the statute. They are not meant to be a substitute for the text.”

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