The Social and Legal Development of Succession Law

estate planning solicitors

If you require a Will, need help with Estate Planning, or are involved in a family provision claim, Bainbridge Legal can provide all manner of assistance to you and your loved ones.

This article will outline the social and legal development of succession law – providing an outline of the impact of family provision legislation. An Estate may be open to a family provision claim, by virtue of the legislation – this will be discussed in depth below.

A follow up article by the author will go on to consider the law of intestacy – when someone dies without having made a valid Will.

Challenging a will

Family Provision Legislation

Succession law is concerned with striking a balance between concepts like equality and testamentary freedom.

Development of succession law

Through succession law a great deal is revealed about a society and its values towards property, family and an individual’s rights before and after death. There have been consistent historical and social develops that affect this testamentary freedom, especially with regard to the rights of the family; women and children in particular. The historical preference for primogeniture (Estate passing to eldest Son) in inheritance has gradually been qualified by women and legislative equality. The legal status of children, in NSW as an example, has been greatly advanced through the recognition of illegitimate children, adopted children and children born through modern technologies. There is less emphasis on the requirement of marriage, with the recognition of de facto and same sex couples, and of children born from those relationships. This has had the effect of redressing the inequalities that had arisen in succession law that previously had not been dealt with through early legislation, or naturally through testamentary freedom.

last will and testament

Testamentary freedom

Testamentary freedom is said to be about balancing ‘the freedom permitted an individual with respect to property and the encroachment... of responsibilities in relation to property, especially towards family.’ Statements like this make it necessary to consider the notion of testamentary freedom and freedom of belief as being qualified by other considerations like fairness and equality. With regard to family provision claims the courts take on the role of the testator, ‘treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father’. This arguably reflects a wider problem in succession law in Australia generally, whereby there is a failure on the part of will-makers to effectively dispose of property with the needs of their dependants in mind. It raises the question however, of when will the deceased’s wishes be rendered subordinate to the state’s requirement that dependants be supported and provided with welfare.

Who can make a claim?

The key way that succession law attempts to deal with these themes of fairness and equality is through family provision legislation. Family provision sits in contrast with testamentary freedom, as a judicially imposed exception to this freedom. Under the legislation, a defined eligible person may make a family provision application to the court. In NSW, for example, the Succession Act 2006 (NSW) defines certain familial relationships deemed to be eligible. Under this provision, current married spouses, current de facto spouses and children are automatically eligible to make a claim. The remaining eligible persons all have to demonstrate that their claim is warranted before being eligible. Ultimately the question before the Court will be whether adequate provision has been made for the proper maintenance, education or advancement in life for the eligible person. This is reflected in the aims of family provision legislation across the Australian jurisdictions. Similar wording is found across other states and was evident in the Law Reform Commission’s model clauses.

In NSW considerations are outlined in order to aid the court in determining if a family provision order should be made, and what that provision will be. These factors are concerned with the nature of the family relationships, the financial situation, the applicants’ personal circumstances and level of dependency, questions of Aboriginality and any other considerations. The Court looks at what ought to have been done, and attempts to redress the inequalities in maintenance and the redistribution of property so as to ensure that adequate provision has been made for the person in question. It is important to note that there is no right for a child to be provided for under a will, nor is there necessarily any requirement that children be provided for equally. The real consideration is dependency.

challenging a will - read more

Family Provisions

Family Provision at odds with Testamentary Freedom?

When a court establishes that adequate provision has not been made for the maintenance, education or advancement in life of an individual and makes orders to rectify this, the court is essentially undermining testamentary freedom. This is contentious and becomes a moral question of having a responsibility to provide for someone regardless of the deceased's intentions. The courts have accepted a moral element in family provision claims, in the sense that the provisions are aimed at promoting continuity of life and not disadvantaging dependent people unfairly. This is made evident in the case law, with emphasis on maintaining a lifestyle for one’s spouse and children. However, establishing that a moral duty is owed could further impinge on testamentary freedom and even be an unfair factor in deciding how much a provision order should reallocate. Clearly, what is fair and just on a social level for the dependants left behind is often at odds with the desires of the deceased. However the current legislative regime attempts to redress the inadequacies of bequests made to dependants

need a lawyer?

Importance of legal advice

In order to make a Will and minimize the likelihood of a family provision claim being made on your estate, you should always obtain legal advice.

List of references and further reading

Status of Children Act 1996 (NSW) s 6 (3).

Succession Act 2006 (NSW) s 109.

Status of Children Act 1996 (NSW) s 14.

Succession Act 2006 (NSW) s 104; Interpretation Act 1987 (NSW) s 21C (1).

Rosalind Croucher, ‘Statutory wills and testamentary freedom - imagining the testator's intention in Anglo-Australian law.’ (2007) 7 (2) Oxford University Commonwealth Law Journal 241, 243.

Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

Succession Act 2006 (NSW) s 57 (1).

Succession Act 2006 (NSW) s 57 (1) (a).

Succession Act 2006 (NSW) s 57 (1) (b).

Succession Act 2006 (NSW) s 57 (1) (c).

Succession Act 2006 (NSW) s 57 (1) (d) - (f).

Succession Act 2006 (NSW) s 59 (1) (c).

NSW Law Reform Commission, Uniform Succession Laws: Family Provision, Report 110 (2005) [2.36].

Succession Act 2006 (NSW) s 60 (2) (a) - (p).

Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

Cooper v Dungan (1976) 50 ALJR 539.

James v James [2007] NSWSC 968.

Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134.

Victorian Law Reform Commission, Succession Laws - Consultation Paper: Family Provisions, (2012) 6.

Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

O’Loughlin v O’Loughlin [2003] NSWCA 99.

Goodman v Windeyer (1980) 144 CLR 490 (Murphy J).