Marks v Marks & Ors

[2003] WASCA 297

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Testator's family maintenance
3. › Claim by independent adult daughters
4. › Widow sole beneficiary under will
5. › Whether moral claim alone sufficient to satisfy jurisdictional threshold
6. › Whether exercise of discretion miscarried
7. › Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6
1. Succession
2. › Testator's family maintenance
3. › Two-stage process
4. › First stage — adequate provision for proper maintenance, support, education or advancement in life
5. › Relevance of moral duty or moral obligation
6. › Whether concept of moral duty constitutes impermissible gloss on statutory language
1. Appeal
2. › Discretionary decisions
3. › Standard of appellate review
4. › Whether discretion miscarried
5. › House v The King principles applied to testator's family maintenance

Quick Take

A finding that a deceased had a 'moral obligation' to provide for adult children is not, without more, sufficient to satisfy the jurisdictional threshold under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA). The court must address the statutory question of whether the deceased died leaving the applicant without adequate provision for proper maintenance, support, education or advancement in life. Where adult children are financially independent and the estate is modest with strong competing claims from a surviving spouse, the claim may fail at the first stage.