You may transfer your estate to whosoever you wish to through your Will but the freedom of disposition of an estate is partly true. Your family members can challenge your Will in situations where your Will may be valid, however the provisions stated therein are unfair or you have not complied with your moral duties.


The Court can intervene in cases were you have breached the moral duty of making adequate provision(s) for certain family members and can modify your Will accordingly by incorporating appropriate provisions for those family members.


Moral Duty


There is no such legislation in any jurisdiction within Australia which specifies that you need to fulfill your moral duty and make adequate provisions for your family members. However, usually the Courts do apply the concept of moral duty relating to the applications made under family provision legislation.


Now the question arises that how do the Court establish that there is a breach of moral duty.


The concept of moral duty was first addressed in Bosch v Perpetual Trustee Co (Ltd) (1938) 38 SR (NSW) 176; 55 WN (NSW) 176; AC 463 (Bosch) at 478-479 case and the Privy Council forwarded the following examination relating to the concept of moral duty:


“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 the Bosch v Perpetual Trustee Co (Ltd) case, it was not just enough for the Court to take into account what a wise and a just father or a mother would do in specific situations being fully aware of the relevant circumstances of the case. The Court should rather place itself in the position of the testator and decide what should be done.

A number of factors need to be considered in determining whether adequate provisions have been made for certain family members or not. These factors include:

Whether certain family members were dependent on the deceased;

The share of the deceased’s estate was not adequate for the maintenance and support;

The relationship between the deceased and the family member began after the last Will was made;

The Will does not provide enough for the ex-partner or the children from an earlier marriage or de facto relationship;

The family members’ belief that the Will is grossly unfair;

The family member can prove that the Will maker was not in sound state of mind when the Will was prepared;

The family member can prove that the Will maker was unduly influenced by one or more of the other beneficiaries of the Will; or

The Will is not clear.


Apart from the above mentioned factors, relationship between the family members and the deceased, competing claims among the beneficiaries, the size of the estate and the character of the family members are some additional factors which the Court considers while determining whether adequate provisions have been made for the family members or not.


For additional information or assistance in any related matter, contact our team of experts at Owen Hodge Lawyers.

A Formal and Enforceable Will
Can A Carer Make A Claim On The Estate?
Can I Disinherit My Wayward or Estranged Child in my Will?
Contesting A Will – The Court Procedure
Current and Future Needs
Dementia and the Law
Executor: Defending a Contested Will
Family Members ‘Moral Duty’ To Make A Family Provision
Family Provision Act Claims
Intestacy And Family Provision
How to Contest a Will – The Process

Other Factors the Court can Consider in Family Provision Claims
Protect your Inheritance against a Claim
Settlement of a Claim on a Estate
Spouses Claims Against Estates Using Binding Financial Agreements
Two Stage Process pf Family Provision Claims
Family Provision Act allows Wills to be contested
Make a Claim
Contesting A Will

– The ‘No Win, No Fee’ Promise when Contesting a Will

Grandchildren Contesting Wills

How can we help?

Fill out the form below and we’ll get in touch with you to discuss how we can help