Family Provision was traditionally seen as a means of giving effect to a testator's moral obligations or duties to provide for their dependants and family members. While, this approach has been questioned, the relevance of moral obligations or duties to family provision claims was confirmed in Vigolo v Bostin.
Vigolo v Bostin was an appeal to the High Court, following the dismissal of Vigolo's family provision claim under s 6 of the Inheritance (Family Dependants Provision) Act 1972 (WA), both by the primary judge at first instance and on appeal.
Vigolo, the appellant, was one of the deceased's five children. He commenced family provision proceedings after being excluded from the deceased's will. At the time of the deceased's death, Vigolo was married with one child and had an asset pool exceeding $2 million and thus presumably capable of meeting his own financial needs. However, Vigolo alleged that he had a moral claim to the deceased's estate given, the absence of disentitling conduct, the familial relationship, the deceased's promise of an inheritance to Vigolo, his expectation as to the fulfilment of that promise and his contributions to the deceased's estate.
The relevant background was as follows. During the deceased's life Vigolo had worked on his parent's farm, known as 'Old Coach Road Farm', and later purchased another farm with his parents as joint tenants. Throughout their business relationship the deceased promised Vigolo that he would inherit Old Coach Road Farm. However, in 1993 the business relationship between Vigolo and the deceased broke down and the parties divided their assets pursuant to a Deed of Settlement, under which Vigolo purchased the deceased's interest in Old Coach Road Farm.
The majority dismissed the appeal, although they recognised that moral considerations may be relevant they rejected the assertion that Vigolo had a moral claim in this circumstances, given:
- That Vigolo had substantial financial resources, which were substantially greater than the financial resources of the other beneficiaries, and thus he had failed to demonstrate that he had not been given adequate provision; and
- That the deceased's promise to Vigolo had been properly dealt with in the 1993 settlement, which had adequately compensated Vigolo for all of his contributions to the deceased's estate and discharged any moral obligation that may have existed.
Moral Obligations, Considerations or Duties
The majority (Gummow and Hayne JJ in dissent) held that moral considerations may be relevant in the determination of a family provision claim.
Gleeson CJ determined that given; the purpose of the legislation, that is, to ensure the deceased's family or dependants receive adequate provision, and its use of subjective standards such as 'proper' and 'fit', that moral obligations were relevant considerations which underpinned the exercise of the court's discretion. With respect to this Gleeson CJ noted:
'Courts have found considerations of moral claims and moral duty to be valuable currency...They are useful as a guide to the meaning of the statue. They are not meant to be a substitute for the text. They connect general but value-laden language of the statue to the community standards which given it practical meaning'
Gummow & Hayne JJ
Gummow and Hayne JJ accepted the statement in Singer v Berghouse that 'references to moral obligations [were] a gloss on the statutory text'. To their minds s 6 properly constructed authorised the making of orders to alter property interests in relation to succession but was not intended to give effect to 'antecedent rights arising by virtue of familial relationships'.
Ultimately, they considered that any authority for the relevance of moral considerations had been superseded by legislative changes and that such changes to the family provision regime suggested that the courts should be cautious in employing moral obligations or considerations as and aid to construction.
Callinan & Heydon JJ
Callinan and Heydon JJ determined that the following indicators in the family provision legislation suggested that moral considerations were relevant.
- The use of the word 'proper' was deemed to invite the court to consider all the relevant circumstances and to move the legislation 'beyond mere dollars and cents'.
- The fact that orders can be made for 'advancement in life', rather than just 'maintenance' or 'support', indicates that provisions can be made beyond what is strictly necessary.
- References to disentitling character or conduct clearly invited moral values or considerations into the determination.
Given this, they determined that moral obligations and duties may be relevant; however, they noted that a moral claim cannot be founded on a consideration not contemplated by the legislation or based on mere preference shown by the deceased for others.
The High Court has affirmed that moral obligations, considerations or duties may be relevant to family provision claims. However, it is clear that where the applicant is comparatively well off and has the means to support themself, the court will not make a family provision order merely on the basis of some moral claim nor will the court allow the applicant to make a claim simply because the distribution of the estate was unfair or because the deceased favoured someone else over them.
In short, the relevance of moral obligations has little influence on the circumstances which justify a family provision claim and any applicant will still be required to establish that they have been left without adequate or proper provision in the circumstances. Moral obligations will be relevant, however, in the assessment of what is adequate and proper.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.