THE decision in a Western Australian legal case about the
nature of provision for children in wills, to be heard by the High Court in
October, is expected to affect the laws of all States.
Section 6 of the Western Australian Inheritance Act provides
that adequate provision for the proper maintenance of children must be
provided, and if it is not, then a court can overrule a testamentary
disposition as it sees fit.
The issue to go before the High Court is whether a moral
connotation can be read into the legislation, and its other State equivalents.
Notions of moral claim and obligation have been read into
cases going back 100 years, but an obiter statement by the High Court in 1994
said that references to moral duty or obligation could be understood as a
“gloss on statutory language”.
The case being appealed to the High Court involves a claim
by Virginio Vigolo for provision out of the estate of his late father, Lino
Vigolo, valued at approximately $1.9 million. Virginio Vigolo was one of five children of the deceased but, under his
father’s will, he received nothing, while each of his four siblings was
entitled to one-quarter of the estate.
Virginio Vigolo’s claim was based on his assertion that he
lived and worked on the family farm on the basis that he was promised the farm
as his inheritance.
He was in partnership with his father, a situation Virginio
claims ended due to Lino Vigolo’s disapproval of Virginio’s accumulation of
personal assets. As a further consequence, Virginio was disinherited.
In the leave for appeal, High Court Justice Michael Kirby
described the issue as “bread and butter stuff” … adding that “this is part of
family values, proper provision”.
Mr Vigolo’s barristers, Ian Viner QC and Paul Mendelow, say the case is of national
importance and will test the argument between freedom of testamentary disposition,
and the requirement of provision in the legislation.
