If you find yourself in a situation where you have been left out of a loved one’s will, it is crucial to understand the so called “moral obligation” that the testator owed, and whether or not it would extend to you.
It is often said that the draftsperson of a will enjoys complete freedom of testation – that is to say, their will can dispose of assets however, and to whomever the testator sees fit, so long as they have mental capacity to do so.
The question of whether a testator has done so in a way that is “fair” and “reasonable”, is a separate enquiry all together. Judges often approach this question through the lens of whether or not a claimant was owed a “moral obligation” of adequate provision from a deceased estate.
The law in Queensland (and indeed throughout Australia) recognises that in certain circumstances, a deceased person had a moral obligation to, and failed to make adequate provision for certain classes of people.
Where does the moral obligation come from?
The so called “moral duty” of a testator is not a requirement imposed by any statute, but rather a justification for the imposition of a duty to provide for a certain class of people in your will. The duty stems from “prevailing community standards” which are broadly as follows:
- That parents ordinarily are expected to provide for their children (whether they are minors or adults);
- That the first partner to die in a legal or de-facto marriage will provide for the surviving partner; and
- That a person will otherwise provide for someone that was financially dependent on them.
The rather elusive definition of “prevailing community standards” has developed over time, and will continue to do so. For example, adult sons were once said to have very limited levels of need compared to adult daughters:
“Decisions in the past show that judges formerly took a very limited view of the provision appropriate to be made, for example, for able-bodied adult sons and a limited view of the appropriate provision for married daughters. These decisions belong to past times and do not express the values of the present age.” Martin J in Darveniza v Darveniza at [29]
The law also recognises the developing nature of relationships and commonplace of blended families and stepchild – stepparent relationships today. Under the Succession Act 1981 (Qld), (“the Act”) a stepchild has the same standing as a biological child to bring a claim, especially if their biological parent contributed to the estate:
[116] The moral duty owed by a testator to step-children in circumstances where their natural parent has been the source of part or all of the assets in the estate has on a number of occasions been recognised as giving rise to a moral duty on the part of a testator Nettle J in McKenzie v Topp at [116]
Who is owed a moral obligation?
In Queensland, the Succession Act 1981 (Qld) recognises three classes of people that have standing to bring a family provision claim:
- Spouse (meaning de-facto or legal)
- Child (meaning biological, step or adopted); and
- a dependent (a person who was otherwise financially dependent on the deceased)
One’s standing as a spouse or child is often a factual matter that is easily proven – for example, by way of a marriage certificate, birth certificate or legal adoption. Other times, it is a complex evidential matter to be met with evidence of a long-standing relationship on a genuine domestic basis.
The category of “dependent” is more complex. The Act provides that:
“The court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.”
If a potential claimant does not fit into one of the three classes of persons, they do have standing to bring a family provision claim.
What does the moral obligation require?
The “moral duty” itself is not a legal benchmark or test, rather it applies to certain relationships. If a moral duty is found to exist, a court will apply a two-stage process to determining what provision should be made from the estate of the deceased:
- Was the provision made under the last will adequate for the proper maintenance, support and advancement of the claimant? and if so;
- What would adequate provision be in all of the circumstances?
There are a number of considerations that are weighed up in determining the answer to the second question. These include, but are not limited to:
- The size of the estate;
- The claimants “station in life” (health, relationship, financial etc);
- the relationship between the deceased and the claimant; and
- whether the deceased supported the claimant during their life.
These are highly discretional factors that a judge can assess in answering the ultimate question of “what does this person need?” One of the few general principles that can be extracted is that the worse off a person is financially, the higher their level of need may be.
How we can help
Our experienced wills and estates team here at Rostron Carlyle Lawyers can assist you in all stages of a family provision claim, whether you:
- are drafting a will and you have concerns that it may be challenged;
- have been appointed as an executor and you know someone intends to challenge the will; or
- you have been left out of a will or consider that the provision made for you is inadequate, and are seeking advice on whether to challenge it.
If you are an executor of a contested will, you will also need to engage legal representation who can give you sound legal advice as to your duties as well as practical advice about resolution of the conflict or claim. Commercial and strategic advice are paramount early on in any estate litigation or planning. Contact Michael Sing today to arrange a conference to discuss your options.
