Good morning,
“Moral Duty of Deceased’s Will to Provide for Children”
In NSW, people may make a claim against a will. This may occur if you are closely related, and have relied on the deceased for support. In addition, the Courts have decided that parents have a moral duty to provide for their children.
It’s this idea of ‘moral duty’ that I wish to discuss in this newsletter because most people are not aware of this duty when they are drafting a will. In considering moral duty, the Courts have decided that this is determined on a case-by-case basis with emphasis upon the relationship between the children and the deceased.
The Courts would generally look at what would be expected in today’s Australian society that a parent would provide for their children in their will. Such considerations would include matters such as:
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The personal relationship between the deceased and his/her children;
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Whether or not the assets of the parent are wisely and justly given;
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The personal circumstances of the children and the deceased;
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Any contributions the children made to the deceased; and
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Whether the deceased provided for the children in their lifetime.
The Courts place themselves in a position as though they were the deceased, and consider what he/she would have done in all the circumstances, as a wise and just person. However, for moral duty to be relevant, the applicant must satisfy the Courts that it was appropriate that the deceased financially provide for them. Your wishes must be thoroughly disclosed along with the reasons that guided those decisions for the Court to consider, especially if you have not provided in your will some or all beneficiaries as set out in the Act.
If I can assist you with any matters regarding a will, or any other legal services, please do not hesitate in contacting me.
Have a wonderful day.
Jeffrey Choy
JCL Legal
0419 233 670
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Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.