The question of whether a “moral duty” owed by the deceased is applicable in determining family provision applications has been the subject of some debate over time. After a period of doubt, the Courts have confirmed its applicability in determining family provision claims.
The concept or “moral duty” had been utilised by the Courts since the inception of the Family Provisions legislation in Australia , however, cases emerged in the 1950’s calling into question the interpretation of the legislation using concepts of “moral duty” (see Fullagar J in Coates v National Trustees executors and Agency Co. Ltd (1956) 95 CLR 494.
In Singer v Berghouse (No 2) (1994) 181 CLR 201. Mason CJ, Dean & McHugh JJ suggested family provision claims should be considered more objectively. At 209, CLR, their Honours said:
“Indeed references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss in the statutory language”.
In the High Court decision of Vigolo v Bostin [2005] HCA 11 however, a 3-2 majority affirmed the applicablity of “moral duty” in determining family provision claims. Gleeson CJ 11at paragraph 25 said:
In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description “moral”. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.
In the subsequent NSW Court of Appeal decision of Nicholls v Hall (2007) 2 ASTLR 419, the Court described the concept of “moral duty” as relevant but not determinative and potentially misleading (per curian Mason P, Hodgson and McColl JJA at [40]). In that case the Court ended up preferring an approach based on considering the concept of a “moral claim” of the applicant.
In Palmer v Dolman [2005] NSWCA 361 and Alexander v Jansson [2010] NSWCA 176, the concept of “moral duty” was found by the Court of Appeal to apply in determining family provision claims.
In Alexander v Jansson, Brereton J (Basten JA and Handley AJA agreeing) said relevantly at paragraph 18:
“…The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of “moral duty” which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, although some of the observations in Singer v Berghouse (No 2) might for a time have suggested otherwise, it is now clear continues to do so [Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Palmer v Dolman [2005] NSWCA 361, [74];”
Brereton J referred to s 80(2)(b) of the Succession Act and Banks v Goodfellow (1870) LR 5 QB 549 as further support for this approach.
This article is provided for your general knowledge and not to be read as legal advice.