3rd March, 2025
When creating a Will, most people want to ensure that their assets are distributed according to their wishes. However, in some cases, individuals may contest the Will after the Will-maker’s death, based on moral grounds. This often involves a claim that the deceased had a moral obligation to provide for certain beneficiaries, even if they are excluded from the Will. But are these claims enforceable in New South Wales (NSW), Australia? Let’s explore this in detail.
What is a Moral Clause?
Regarding Will disputes, a moral clause refers to an argument raised during a Will contest, where a claimant asserts that the deceased had a moral duty to provide for them, even if the Will does not include them or they have been left out of the distribution of the estate. This moral obligation could arise from the deceased’s personal beliefs, lifestyle choices, family dynamics, or ethical values. For example, a parent may exclude a child from their Will due to the child’s involvement in criminal activities or disapproval of their lifestyle choices. In another case, a family member might be excluded because of long-standing personal differences.
This differs from an incentive in a Will, which is designed to encourage certain behaviours by offering benefits. A moral claim doesn’t aim to influence future actions but instead argues the deceased’s moral duty to include certain family members or individuals in the estate distribution.
Enforceability of Moral Claims in NSW
In NSW, moral claims are generally raised when a Will is contested after the Will-maker’s death. These claims argue that the deceased owed a moral obligation to provide for a family member, such as a spouse, child, or life partner, even if that individual was excluded from the Will. The court will assess whether the deceased had a moral duty to provide for the claimant, especially in cases involving children or long-term partners, even if the relationship was estranged or there was little contact at the time of death.
While moral claims are not automatically enforceable, the court may consider them when determining whether the deceased made adequate provision for the claimant. The outcome depends on the specific circumstances and relationships involved.
What Can Be Done if You Are Excluded?
If you feel you’ve been unfairly excluded from a Will, you can contest it by arguing that the deceased had a moral obligation to provide for you. Seeking professional legal advice is essential when dealing with Will disputes.
Moral claims in Wills can be complex. If you’re involved in a Will dispute, it’s crucial to seek legal advice from specialists in the field.
At Castrikum Adams Legal, we have extensive experience in contesting Wills and securing fair outcomes for our clients. If you have concerns about moral clauses or need assistance, our expert team is here to help.
If you would like to dive deeper into related topics, we invite you to check out our other blog posts.