For discussion purposes: Is there a moral obligation on the part of a parent to include a child or children as beneficiaries in a will?

2014-03-21 14:10

Introduction

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A client consults with me regarding drawing up his last will and testament and after my advising him, he instructs me to exclude a certain son as beneficiary under that will. The reason doesn't matter. The question for discussion purposes is, "is there a moral obligation on his part to include that son as a beneficiary in his will? "

Yes, in South Africa, we have freedom of testation but there have been cases where our courts intervened in instances where a testator has race based provisions in a trust deed that excluded people of colour from accessing bursaries that provided for, say people of Anglo-Saxon or European extraction, in words white South Africans. See ,for example, University of Kwazulu-Natal v Makgoba and Others (17124/2005) [2009] ZAKZDHC 28 (17 July 2009).

So the issue I raise is very much relevant.

In contested wills and will disputes the concept of moral obligation is often raised. For instance is a spouse , life partner or de-facto of the deceased is left out of a will they often successful challenge the will on the grounds that the deceased owed a moral obligation to them to provide for them in the will. The Court will assume a testator owed a moral obligation to a number of people e.g. children, adopted children or children of a de-facto relationship the deceased was in at the time of death.

In foreign jurisdictions like Australia nitwithstanding where there has been little contact or gaps in contact or occasional contact with the will maker, this can be enough to satisfy the test which places a moral obligation on the deceased to provide for the maintenance, education and advancement in life of children who have been left out of the will and are disputing the will.

The Court determines the issue of moral obligation not to determine the amount to be paid to a claimant in a will contest but rather whether the will maker made “adequate” and “proper” provision for them and is a necessary first step.

Of course all cases turn on their particular facts but broadly speaking you can challenge the will even if you have been estranged from your family, for example where it was the parents decision to exclude the child, or the will maker did not have a close relationship with the child, for example where the father left the home, or had no contact with the child soon after the birth.

In my opinion South African law is evolving and our courts seem to lean in favour of recognising the argument that parents have a moral obligation to provide for their children even if they are disappointed with their children, or children’s life choices, or chose not to engage in the relationship with their children. Even estranged children and children who barely knew their parent have been able to establish to the court that the deceased owed them a moral obligation and have successfully contested a will so they secured their inheritance.

What do you think ?

SABER AHMED JAZBHAY

ATTORNEY

21.3.2014

#FOLLOW ME ON TWITTER @jazlaw24

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