Author – Graeme Heckenberg
In contested wills and will disputes the concept of moral obligation is often raised. For instance is a spouse, life partner or de-facto of the deceased is left out of a will they often successful challenge the will on the grounds that the deceased owed a moral obligation to them to provide for them in the will. The Court will assume a testator owed a moral obligation to a number of people e.g. children, adopted children or children of a de-facto relationship the deceased was in at the time of death.
Even where there has been little contact or gaps in contact or occasional contact with the will maker, this can be enough to satisfy the test which places a moral obligation on the deceased to provide for the maintenance, education and advancement in life of children who have been left out of the will and are disputing the will.
The Court determines the issue of moral obligation not to determine the amount to be paid to a claimant in a will contest but rather whether the will maker made “adequate” and “proper” provision for them and is a necessary first step.
All cases turn on their particular facts but broadly speaking you can challenge the will even if you have been estranged from your family, for example where it was the parents decision to exclude the child, or the will maker did not have a close relationship with the child, for example where the father left the home, or had no contact with the child soon after the birth.
Modern Australian law is evolving and the Court now recognises that parents have a moral obligation to provide for their children even if they are disappointed with their children, or children’s life choices, or chose not to engage in the relationship with their children. Even estranged children and children who barely knew their parent have been able to establish to the court that the deceased owed them a moral obligation and have successfully contested a will so they secured their inheritance.
Our firm was recently successful in securing a share of a deceased estate for our client who contested the will as he was excluded because of his homosexuality and his parent’s disappointment with his lifestyle.
Heckenberg Lawyers have successfully represented clients in contesting wills for over 20 years and are recognised as Wills& Estate specialists so call us if you have a question in this area of the law.