Family Protection Act 1955 and the concept of moral duty
Introduction
The Family Protection Act 1955 (“the Act”) gives the Court a discretion to order that provision be made for the “proper maintenance and support” of certain family members out of the deceased’s estate. The Act is embedded in the social landscape of the day, and the extent to which the deceased owes a “moral duty” to provide for the claimant will vary considerably.
Relevant factors
Currently a spouse, de facto partner, or a child may lodge a claim against an estate, and in limited circumstances grandchildren, stepchildren or parents have the ability to do so. Section 4 of the Act requires the Court to decide whether the deceased has provided for the “proper maintenance and support” of the claimant. This stage involves a high degree of judicial discretion.
Vincent v Lewis (2006) provided a summary of the case law until 2006, looking at all the factors the Court will take into account when assessing whether there has been a breach of a moral duty owed to the claimant. The key consideration in each case is whether, objectively considered, taking into account all the circumstances of the particular relationship, the deceased breached the moral duty owed to the claimant.
This duty is not owed simply because of the existence of the relationship, but due to the strength of the relationship. Periods of estrangement and family rifts will weaken the moral duty owed, while dependence on and care for the deceased will strengthen it.
The Court of Appeal in Williams v Aucutt stated that “support” is an additional and wider concept than maintenance, which entails “sustaining, providing comfort”. Ethical considerations are relevant when assessing whether adequate provision has been made for the support of the applicant, as opposed to “maintenance”, which is directed at the claimant’s economic (or financial) needs. The two are assessed concurrently however, and factors under both may strengthen or weaken a claim.
The following are factors which are relevant to assessing the strength of a claim, although they do not constitute an exhaustive list; all circumstances of the particular case will be relevant.
Nature of the relationship with the deceased
Section 5 of the Act allows the Court to “refuse to make such an order in favour of any person whose character or conduct is or has been such as in the opinion of the court to disentitle him.”
There are two categories of misconduct that will justify exclusion:
- Outrageous conduct by the applicant to the deceased; and
- Distinct and meaningful periods of estrangement brought about by the claimant.
The level of misconduct required to be disqualified however, is serious misconduct. In MAVM v Public Trust (2009), the claimant had physically and verbally abused his father and had exploited the father’s “good nature” most of his life. Similarly, Horton v Wakeham (2007), stated disentitling conduct required “deliberate malice directed toward the testator or committing serious criminal offences with no remorse”.
The Horton and MAVM cases illustrate that the threshold to be disqualified requires conduct with a high degree of malice. Estrangement or conduct that does not amount to disentitling behaviour will however still be relevant, and will not preclude relief entirely. In Re Green the Court of Appeal found that conduct of the testator’s daughter had weakened the relationship with the deceased, due to taking up residence overseas and having little contact; however it did not warrant a complete exclusion. The estate in question in that case was a relatively large one, a factor that will encourage Courts to be more liberal in an award.
A key consideration when the Court is deciding whether or not to exclude an applicant is always where the fault lies. If the fault is purely on the deceased, this may in fact increase the moral duty that is owed to the applicant, for example, if the deceased neglected or failed to provide when he or she had the means to. If the fault is on the claimant, the question is whether the conducted amounted to a level that would exclude an application, as noted in the cases above. The time elapsed for the period of estrangement will always be relevant in assessing the level of the conduct.
Other factors relevant when the court is assessing the nature of the relationship with the deceased will be the duration of the relationship, the conduct of both parties, and the intention of the testator. All factors will be weighed differently depending on the circumstances of the particular case.
Strength of competing moral claims
The strength of a claim will always be dependent on the actual form of the relationship between the deceased and the claimant. For example, there is a "paramount duty" firstly to the widow of the deceased, and Courts will always be more liberal when assessing a claim to a widow than, say, a niece or nephew. This is one way a Court will distinguish between competing moral claims from various parties. A moral duty may be increased to one applicant over another due to the closeness of the relationship; in Re Cairns one child brought support and comfort to a parent in her declining years, and the Court was justified in favouring that child over another. Relevant circumstances will include whether the claimant has dependent children, and the financial position of each party relative to the other parties. The financial need and position of a claimant is discussed further below.
Financial need/position
The financial need and position of a claimant will include the value of the claimant’s assets, their income, and any other relevant financial considerations such as whether the claimant is receiving welfare payments or income from other sources. The number of financial dependents the claimant has will also increase the person’s "needs", and increase the likelihood of the finding of a moral duty to provide adequately. When assessing the financial position of the claimant, the Court will look at the current and expected future financial position of the claimant, even though the moral duty is traditionally assessed at the date of the testator’s death. The Court may also take into consideration factors such as the current or future health needs of the claimant, or for a claim by a partner the maintenance of the lifestyle enjoyed during the relationship may be relevant.
Size of the estate
The size of the estate will always be a vital consideration, as it will determine the extent to which the deceased can satisfy his or her moral duty to eligible claimants. Larger estates allow more leeway for the testator to distribute the estate as they see fit, so long as those to whom he or she owes a moral duty are catered for. In smaller estates, the role of the Court will be to ensure all moral duties are met so far as possible.
Contributions
Contributions made to the deceased’s assets or to the relationship are highly relevant when assessing the strength of the moral duty owed to the claimant. Such an example is B v Adams (2005), where a widow had contributed significantly to the husband’s farm. The Court in that case increased the strength of the moral duty owed to the claimant. Alternatively, a contribution to the relationship may be sufficient to increase the moral duty, as in Re Wilson, where the wife had “performed outstandingly the services of a loving wife”.
Trend and current position as to quantum of reward
What constitutes “proper maintenance and support” has varied significantly since the first family protection legislation, the Testator’s Family Maintenance Act 1900. The initial approach was exceptionally conservative, aimed at ensuring claimants were given only enough to prevent the burden of maintaining the claimant falling on the state welfare system.
This restrictive approach was followed by a long period of generous orders through the majority of the 20th century, characterised by the rising liberal movement. Courts began to have a wider regard to the nature and circumstances of each claimant’s position with a key consideration being whether the testator had breached the “moral duty” owed to the claimant.
The notion of a moral duty and assessment of whether it has been breached is still central to the Court’s methodology when determining a claim under the Act. However, recognising the increase in frequency and size of awards that were being made, a return to conservative principles was prompted, the turning point being the Court of Appeal’s decision in Williams v Aucutt. Justice Blanchard cautioned “it is not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair any breach of moral duty”. This more conservative approach has been reiterated in subsequent decisions and the number of cases where the Court has found a breach of the moral duty has declined in the past decade.
The Court of Appeal in Williams v Aucutt stressed that it is not the role of the Court to rewrite the testator’s will. Because of this, claims have diminished since the turn of the millennium and Williams v Aucutt is still the leading authority used to quantify a claim under the Act.
Conclusion
In summary, the Court is required to look at all of the relevant circumstances in a particular case when deciding whether or not there has been a breach of a moral duty by the deceased. The moral duty is assessed at the date of the death of the deceased, however the future financial position of the applicant may be considered. Although estrangement will be a relevant factor that may decrease the moral duty (or, if due to the fault or neglect of the deceased, increase the duty), it will only extinguish a duty in cases of serious misconduct or estrangement, taking into account all of the relevant circumstances.
If you would like further information please contact Daniel Shore on 07 958 7477.
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