Wills, Family provision & Moral Duty

Family provision legislation imposes a legal obligation on the Will maker to make proper provision for the support and maintenance of certain defined dependents.

Legislation provides that the task of the Court is to determine the extent of the provision made for the maintenance, education and advancement in life of the dependent.  If the Court believes it is inadequate, its role is to evaluate what provision, if any, would be adequate.

The purpose of Family Provision Acts is not to provide for an equal share of an estate to an aggrieved party – it is limited to the provision of adequate maintenance and support out of the deceased’s estate.

The Court’s role is to place itself in the position of the Will maker, and having taken the facts and circumstances into account decides if the Will maker has breached their moral duty toward their dependents. The moral duty of the Will maker has been defined as the actions society reasonably expects of a person in the circumstances, by reference to contemporary community standards.

Lino Vigolo died in June 1997 aged 69; the net worth of his estate was $1,913,144. His Will divided the estate between four of his five children as tenants in common in equal shares. No provision was made for his son Virginio or for his widow, Rosario.

Virginio left school at 16 to work on the family farm while he took other jobs. When he was 21, he wanted to buy his own farm. Virginio was persuaded by his father to buy a farm with his parents, and work for reduced wages on the basis that,

‘at the end of the day, it will all be yours’

Over the next 15 years, Lino and Virginio bought and operated farms, a produce market and a service station as equal partners.

Virginio married and he and his wife Susan bought a hairdressing business, and another farm, which Susan ran. Lino resented Virginio accumulating personal assets leading to the break down of the business relationship.

In 1993, the company was formally dissolved and the assets were divided based on a market valuation. Lino then made a new will. Virginio was left out of this Will, as the father believed the son had been adequately provided for.

Lino died in 1997. Virginio brought a family provision claim. The Court found that Virginio had been given more generous opportunities than his siblings, and had failed to show that he was left without adequate provision,  therefore further provision ought to be made for him out of Lino’s will. Accordingly, promises that the farm would be his did not give rise to a

‘moral claim which would otherwise justify making provision for him’.

The Court did not discount the promise but considered that further provision for the applicant was not necessary.

This conclusion was upheld on appeal. The High Court held that Lino’s promise must be considered in light of later events. Therefore the 1993 Deed of Settlement rendered the promise that Virginio would inherit the farm ineffective. Further Virginio was an able-bodied adult son who was not in need of support.