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History of Family Provision or Testator’s Family Maintenance

In common law countries such as Australia and the UK, individuals are usually afforded the right to dispose of their property as they choose after their death. This principle is called testamentary freedom. Family Provision or Testator’s Family Maintenance legislation is a significant infringement on testamentary freedom. Courts can effectively alter a will so that certain eligible persons inherit from the estate. This article looks at the history of family provision in estate law.

Other restrictions on testamentary freedom

The limitation placed on testamentary freedom by Family Provision laws may seem strange when considering how limited the other restrictions to testamentary freedom are. A will can contain almost any clause a will-maker chooses, so long as the testator had capacity and was not affected by undue influence.

The only other exceptions to testamentary freedom are:

  • Illegal clauses – For example, requiring someone to commit a crime
  • Clauses against public policy – For example requiring a beneficiary to marry
  • Voluntary contractual limitations
  • Forced Inheritance or Testator’s Family Maintenance legislation

The ability of a person to choose how their property is disposed of following their death is considered a natural extension of property rights. Recent legal decisions treat unfettered testamentary freedom as a right of utmost importance. In light of this, one might wonder why a court should be able to pay a child intentionally left out of their parent’s will.

Historical context of Family Provision

The right of complete testamentary freedom was only established in the late nineteenth century when legislation abolished the longstanding right of Dower. Dower was a wife’s right to claim an interest over one third of the estate acquired by her husband during their marriage. This right dates back hundreds of years, with references as early as Roman times.

The right of dower served two purposes:

  • It protected the wives of wealthy men from being left destitute
  • It recognised the valuable contributions made by women towards a household, which traditionally included domestic duties and the raising of children.

The right of Dower was extremely important in the British legal system because married women had limited rights to own property and earn income. Until the late nineteenth century, a married woman’s rights were entirely subsumed by her husband: her property became her husband’s property upon her marriage. When a husband did not leave anything for the wife in his will, she would have nothing.

Dower guaranteed a widow had at least some income from rent and a roof over her head. However, even this relatively small protection given to women was considered too much of a burden by many men. Men complained that it made conveyancing too difficult and expensive, and any transaction could be interrupted by a widow claiming her dower. As such, men hired creative lawyers to find ways to prevent their property from going to their wives. In debates about the abolition of dower, politicians argued that it should be removed as men would just avoid it anyway.

Introduction of Testator’s Family Maintenance

In the following years, widows were left wanting after the deaths of their husbands even if their husbands had more than sufficient estate to fund their needs. In 1906, New Zealand was the first country to introduce legislation to protect women in this situation, with the Testator’s Family Maintenance Act 1906. Queensland introduced legislation in 1914 and by 1939 each Australian state had their own version.

The modern family provision legislation has expanded over time, largely with changing definitions of who is eligible to apply and what assets are taken into account.

Purpose of Family Provision

Family Provision legislation does not give the court free reign to disregard a will-maker’s expressed wishes and make whatever distribution they think is fair. It is about enforcing a moral requirement, set by the broad community’s expectations, that a person provide for their family.

In the modern world, society has made great strides towards more equal involvement by men and women in the workforce and correspondingly, achieved a more equal distribution of income and assets. Men are also much more involved with the domestic duties and the raising of children. Therefore, women are now more able to earn income for their own maintenance. Accordingly, all spouses irrespective of gender may now seek provision.

It is still common even in modern families to have an uneven split between the labour that earns an income and the unpaid labour of homemaking, frequently one spouse (often the wife) will work far less and have lower assets than working spouse (often the husband). Therefore, family provision will continue to remain an important protection for those family members predominantly responsible for duties at home.

In addition, children and stepchildren often require financial assistance and have an expectation of inheriting from their parents. Family provision legislation can assist to provide this in cases where a parent has failed to provide adequately for a child in their will.

International Approaches

The common law principle of testamentary freedom is not universal, or even the dominant legal position for wills. Many European countries are civil law systems, which originate from Roman Civil Codes. In these countries, mandatory minimum provisions are made to the spouse and children of a deceased.  In many religious legal systems, there is forced inheritance with no concept of testamentary freedom. There are very few legal systems that permit complete testamentary freedom, the only sizable one being the United States.

Most jurisdictions recognise the need for a person to look after their family and impose obligations to make certain concessions in one’s will. In Australia,  Family Provision laws temper the inequities of complete testamentary freedom.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Sean Pascoe - Solicitor - Brisbane

This article was written by Sean Pascoe - Solicitor - Brisbane

Sean Pascoe completed a Bachelor of Business (Finance), a Bachelor of Laws, and a Graduate Diploma of Legal Practice at the Queensland University of Technology. He was admitted to practice in the Queensland Supreme Court in February 2020. Sean’s primary focus is in the area of wills and estates litigation. He also has experience in e-discovery and construction law. In...

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