In NSW, people may make a claim against a deceased’s will. This may occur if you are closely related, and have relied on the deceased for support. The legislature has decided that a deceased has in the normal course a responsibility, a moral duty, to provide for their spouse and those dependent upon them. This is set out in Chapter 3 of the Succession Act 2006 (“the Act”).
It’s this idea of ‘moral duty that I wish to discuss in this newsletter because most people are not aware of this duty when they are drafting a will. In considering moral duty, the Courts guided by the legislation have determined this on a case-by-case basis, with emphasis upon the relationship between the deceased and his survivors.
The Courts would generally look at what would be expected in today’s Australian society regarding how one should support their dependants in the deceased’s will. Such considerations would include matters such as:
1. The personal relationship between the deceased their spouse and children;
2. Whether or not the assets of the deceased’s will are wisely and justly given;
3. The personal circumstances of the deceased and the spouse and children;
4. Any contributions made to the deceased; and
5. How does the deceased’s will provide for the spouse and children in their lifetime.
The Courts place themselves in a position as though they were the deceased, and consider what he/she would have done in all the circumstances, as a wise and just person. However, for moral duty to be relevant, the applicant must satisfy the Courts that it was appropriate that the deceased financially provide for them. As each situation is treated on its own merits every situation must be considered in its own circumstances. It is therefore imperative that you set out in appropriate form, suitable for a Court, the reasons why you have not provided for your spouse or children.
We have wide experience in family provision matters to appear in the Supreme Court of New South Wales, draft wills to ensure as much as possible, that they will not be challenged, and assisting people to determine whether they have a rightful challenge to a will.
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