Your moral obligation when writing a will

Written by: Georgina Pauling
Jan 24 2022

If a person feels hard done by, a will can be challenged

It is often presumed a person can leave their estate to whoever they want in their will – and divide up assets any way they choose.

However, there are moral obligations that need to be met when leaving assets to beneficiaries, or the will can be vulnerable to challenges by certain family members or a partner.

Our recent article, about a “homemade” will, not only highlighted the importance of a will being prepared correctly, but the facts in the Sun v Sun case indicate the related moral obligations may also be the subject of further Court proceedings.  

The Family Protection Act 1955 (the Act) places limits on testamentary freedom, meaning a will-maker is not entirely free to leave their assets to whoever they wish.

The following people can make a claim under the Act if a will maker has breached their moral duty to provide proper maintenance and support:

  • The spouse or civil union partner of the deceased
  • A de facto partner who was living in a de facto relationship with the deceased at the time of the deceased’s death
  • The children of the deceased
  • The grandchildren of the deceased alive at the time of the deceased’s death
  • The stepchildren of the deceased if they were being maintained, or legally entitled to be maintained, by the deceased at the time of the deceased’s death
  • The parents of the deceased, in specific circumstances.

It is key to note that there is no presumption that children should be treated equally under a will.

If a breach of moral duty is established, the Court has the discretion to change the terms of the will and order any provision it thinks fit be made to the deceased’s estate. The Court should only change the terms of the will as far as is necessary to remedy the breach.

In considering whether there has been a breach of moral duty, the Court considers what a “wise and just testator [will-maker]” would do in the circumstances and looks at the following factors when determining whether there has been a breach of moral duty:

  • The size of the estate
  • What, if anything, the claimant has been left under the will
  • The deceased’s moral duty to provide for others
  • Personal circumstances of the claimant such as age, financial position, conduct during the deceased’s lifetime (including any disentitling behaviour), and financial assistance provided to the claimant during the deceased’s lifetime
  • The deceased’s behaviour during their lifetime towards the claimant such as abuse or neglect
  • Any other factor the Court thinks is relevant

There is no prescribed formula and the outcome of claims under the Act depends very much on the facts in each situation.

The Courts, in more recent times, have tended to be more conservative in their awards to claimants, prioritising the will-maker’s wishes where they can.

However, if you are considering leaving a family member out of your will, it is important that you discuss this with your lawyer and ensure that a record of the reasons for doing so is kept together with your will.

Haigh Lyon can assist with drafting wills to ensure a person’s testamentary intentions are maximised and outlined correctly. Contact A’lanah Harrison on [email protected] or 09 306 0611 or Georgina Pauling on [email protected] or 09 985 2527.