Although you have autonomy to transfer your estate to whomever you wish in your Will, you may have to consider your moral duties to family members. Your family members may contest a will if they feel the provisions are unfair or have not complied with moral duties.

 

In Australia, the Courts may intervene in cases where adequate provisions have not been made for dependent family members.

 

However, how is adequate provision determined? What rights does the court have to overturn a will? And, under what circumstances may the will be contested? Read more below to find out to find out more about contesting wills.

 

What Are Moral Duties Under Australian Law?

 

There is no legislation is Australia requiring you to fulfil moral duties or provide adequate provisions for your family members in your Will. However, you may find that the Courts may apply moral duty to any applications made under the family provision legislation.

 

But, how do the Courts decide if there has been a breach or moral duty or not?

 

The precedent for moral duty can be found in the case of Bosch v Perpetual Trustee Co (Ltd)(1938) 38 SR (NSW) 176; 55 WN (NSW) 176; AC 463 (Bosch). In this case the Privy Council made the following statement:

 

“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.”

 

In this case, the Court made the point that is was not enough for them to take into account what a ‘wise and just’ father or mother would do in a specific circumstance. Rather, in some circumstances, the Court should put themselves in the position of the testator to make a moral decision on their behalf.

 

What Factors Need to be Considered In Determining Adequate Provision?

 

There are a variety of factors considered by the Courts when determining whether adequate provisions have been made for family members under family provision legislation.

 

Some of the factors that may affect the decision of the court, may be if those mentioned in the will are deceased or were dependent of the testator. Another consideration could be that the maintenance and support allotted as part of the deceased’s estate is not adequate enough

 

The Courts may also take into account the relationship between the deceased and the family member since the period of time the last Will was made.

 

In some cases, concerns may be raised against the state of mind of the testator at the time the Will was prepared. Under these circumstances, family members may file to contest the Will under family provision legislation.

 

A Will may also be contested if the language is not clear, or if it was unduly influenced by one or more of the beneficiaries.

 

Who Should Be Included In A Will To Avoid the Contesting of a Will?

 

There several people that a testator is expected to provide for when undertaking estate planning. Spouses and children are typically the first to be considered when it comes to adequate provisions. This may include de-facto partners and any children as the result of any de-facto partnerships.

 

In certain cases the testator may have a moral obligation to provide grandchildren where the grandchild was dependant on them.

 

All decisions are made dependent of the financial situation of the claimant, as well as education and earning capacity.

 

All the above should be at least be considered during estate planning process, so as to avoid potential amendments to the will through family provision claims.

 

Summary

 

Making sure you have met your moral duties and made adequate provision for dependant family members is important in the estate planning process.

 

It is possible for family members to make claims under family provision legislation if they feel that they have not been adequately provided for. Contesting wills, however, is not taken lightly, and the interests of the testator are always paramount.

 

The Courts may consider more factors than those listed above. Such factors may include the size of the estate and the character of the claimants, in deciding if adequate provisions have been made.

Whether you are claimant interested in learning more about contesting wills, or you are a testator preparing your estate it is important to learn more about the process. To learn more about contesting wills, and family provision legislation, talk to a lawyer in your local vicinity.

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