The Alberta Justice Succession Law Reform Project Consultation seems to have been quite low profile, and it also appears to be quite separate from the Alberta Law Reform Institute’s current Succession Project.

The issue of who might qualify as a dependant and therefore be able to challenge the distribution of the deceased person’s assets is separate from the issue of determining how much support might be appropriate. The Alberta government project seems to contemplate culture playing a role in the first issue — in defining who a testator’s dependant’s might be — but not in the second issue (comparing page 7 and page 13 of the Consultation Workbook). On the issue of determining how much support is appropriate, the consultation contemplated that only legal obligations for support would be a factor, and perhaps “strong moral obligation the deceased may have had to support a dependent.”

As the moral obligation on the second issue is currently understood in law, it appears to be confined to generally accepted community standards of what is right and appropriate. It is an “objective” standard, not the subjective moral ideals of the deceased. Community standards are probably those of society as a whole. The Australian case of Wenn v. Howard, [1967] V.R. 91 is explicit about this; the moral standards in that case were not the standards of the Roman Catholic community.

Your question was what “if morally we think the children should inherit equally, but that person’s culture dictates that the eldest son should receive the estate?” As I read the current case law and the way Alberta’s consultation is leaning correctly, then the answer would be that the belief that the eldest son should receive the estate would be a factor in identifying the eldest son as a dependant. However, it would not be relevant in determining how much support that child, as opposed to any other child, received.

Of course, using community standards as an objective measure of moral obligation raises a number of questions. How are community standards to be ascertained for the purpose of family provision or succession law? In the Australian cases, the usual source is legislation. But the question assumes that “the community” shares a morality, something that is highly doubtful in our pluralistic society. And even if there is a shared morality, the courts have said little about how to identify it. There is an obvious danger that judicial notice of community standards will reflect the beliefs and values of dominant religious groups in society and therefore disadvantage testators from minority religious groups.

There does not appear to be a lot of recent, thoughtful writing on these issues. Three exceptions are:
o Pauline Ridge, “Moral Duty, Religious Faith and the Regulation of Testation” (2005) 28 UNSWLJ 720
o Anthony Bradney, “Faced by Faith” in Peter Oliver et al., Faith in Law: Essays in Legal Theory (2000) 89
o J.G. Miller, “Family Provision on Death—The International Dimension” (1990) 39 Int’l and Comparative L. Quarterly 261

Jonnette