Freedom of Testation vs Moral Duty

In Australia, a will-maker enjoys the right to freedom of testation when drafting a will. The freedom of testation confers upon the will-maker the power to deal with their assets, when making their will, as they see fit. The law will give effect to the wishes of the will-maker, provided that the will-maker has met the formal requirements of preparing and signing a will.

That freedom of testation is not absolute. Part IV of the Administration and Probate Act 1958 (Vic) (the Act) gives Victorian courts a discretionary power to order ‘adequate provision’ for the ‘proper maintenance’ and support of eligible claimants in cases where it is determined that the will-maker failed to do so.

Who can assert a claim to vary the will?

Section 90 of the Act provides a list of people who are eligible to make a claim for provision or further provision under a will, including (but not limited to):

• current / former spouses or domestic partners;
• children and step children of the deceased;
• grandchildren of the deceased (whom are financially dependent on the deceased as at their date of death); and
• a person who is a member of the deceased’s household as at their date of death

This article will focus on the different classes of adult children and their eligibility to contest a will.

Classes of adult children beneficiaries 

Generally, the degree to which, at the time of death, the deceased had a moral duty to provide for the adult child will turn upon the following factors:

• whether the adult child suffers a disability;
• whether the adult child is in financial need; and
• whether the adult child was financially dependent on the deceased.

It is important to note that the following information is general in nature and does not constitute formal legal advice on which a person can rely. If you believe you have a valid claim, please contact our Wills and Estates team for legal advice.

1. Adult child with a disability

The Act defines ‘disability’ to mean:

a. one or more intellectual, cognitive, neurological, sensory or physical impairment or to one or more impairments attributable to a psychiatric condition; and

b. the impairment or impairments are, or are likely to be permanent; and

c. the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility

d. the impairment or impairments affect the person’s capacity for social or economic participation

In Flavel v Flavel [2020] VSC 19, the Victorian Supreme Court accepted the general moral duty that a father of a disabled child had a responsibility to ensure that adequate provision was made to them for their proper maintenance and support. In light of this principle, the Victorian Supreme Court ordered that further provision be made for the deceased’s disabled child, despite the deceased having minimal contact with that child during their lifetime.

2. Adult child with financial need

An adult child as a claimant does not have to be financially destitute to challenge the validity of a will. However, their financial circumstances can affect the quantum of their claim. It is, therefore, wise to disclose your financial circumstances to your lawyer when discussing a potential claim. When assessing whether an adult child is in financial need, the Court will take into consideration their income, superannuation, shares, bonds, investments, real estate, liabilities and the assets, liabilities and income of their partner or spouse.

Financial hardship and need are interpreted conservatively. In Re: Janson; Gash v Ruzicka (No 2) [2022] VSC 139, the Victorian Supreme Court emphasised that a parent’s duty to provide does not extend to a duty to provide their child with an unencumbered property or funds to acquire a property in an affluent suburb. Therefore, a parent’s moral duty to provide under the will is one that relates to the livelihood of the adult child and does not extend to the child’s excessive desires.

3. Adult child with or without financial need, but dependent

When assessing the degree to which a parent has a moral duty to provide for their child in the will, the Court will examine the nature of the relationship between the parent and child. Consideration must be given to the degree to which the child remained dependent on their parent in adulthood together with the community’s expectation that a parent would continue to ensure that such a provision will be fulfilled as a matter of ongoing expectation.

In Kornwasser v Spigelman [2022] VSC 759 the Victorian Supreme Court deemed that where the adult child’s deceased parent had made choices throughout the child’s life which limited that child’s ability to be financially independent, the parent was under a moral obligation to continue providing for their dependent child as for the parents had done whilst alive.

Queries

If you have any questions about this article please get in touch with the author or a member of our Wills & Estates team.

Disclaimer

This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.