Legislation exists in all Australian States and Territories which enables certain persons to make application to the Court for provision, or further provision, from the estate of a deceased person where the provisions of any will, or the intestacy rules (governing the situation where a person dies without having made a completely effective will), or a combination of the two, fail to make adequate provision for the proper maintenance and support of the applicant.
The legislation derives from The Testator’s Family Maintenance Act 1900 (NZ). Victoria followed suit by passing the Widows and Young Children Maintenance Act 1906; Tasmania passed the Testator’s Family Maintenance Act 1912; Queensland passed The Testator’s Family Maintenance Act of 1914; New South Wales passed the Testator’s Family Maintenance and Guardianship of Infants Act 1916; South Australia passed the Testator’s Family Maintenance Act 1918 and Western Australia inserted section 11 into the Guardianship of Infants Act 1920. The Australian Capital Territory added Part (VII) to the Administration and Probate Ordinance in 1929 and the Northern Territory passed the Testator’s Family Maintenance Order in 1929. These statutes necessarily reflected a view of the family and of obligations to the family at the time they were passed.
The concept of court intervention in the application of succession law has the potential to cure any injustice caused by the provisions of a particular will or applicable intestacy rules. It also has the potential to interfere with carefully thought out, deliberate decisions taken by will-makers (referred to as testators) when making their wills.
It is understandable that family provision legislation, as it was originally conceived, and as it has developed, is constrained by limitations which reflect on the one hand a view that a person who has amassed wealth during his or her lifetime should be able to dispose of it freely upon death and, on the other hand, a desire to ensure that the surviving spouse and children or other lineal descendants (referred to as issue), at least, of a deceased person should not be left destitute. These limitations vary between the States and Territories.
1.1 THE OBJECTIVES OF SUCCESSION LAW
It might be hoped that the law of wills, intestacy and family provision could be capable of attaining two broad objectives: that of allowing substantial freedom to every person making a will to dispose of his or her property; and that of ensuring that the legitimate expectations of persons having a moral claim upon the deceased person can be satisfied. Historically these competing objectives have always preoccupied those concerned with the justice of the succession system. Striking an appropriate balance between these two objectives is what is at issue. The balance may need to be reconsidered from time to time in the light of changing social conditions.
1.2 THE LAW OF WILLS
The law of wills has never attempted to encompass an objective of satisfying the legitimate expectations of persons having a claim upon the testator. The law of wills has been almost exclusively concerned with ensuring unfettered freedom to the will maker. The eighteenth and nineteenth century philosophers who praised the concept of freedom of testamentary disposition generally took the view of Jeremy Bentham1 that it is a power to reward “dutiful and meritorious conduct” and is:
an instrument of authority, confided to individuals, for the encouragement of virtue and the repression of vice in the bosom of families.
It was a freedom predicated on the view that children should be obedient to their parents, most particularly their father, their mother having no property of her own. In other words, historically, freedom of testation was a vehicle of paternal power; and it tended to be equated with wealth accumulated by the testator in his lifetime, rather than with inherited wealth. The sanctity of private property may be seen as a fundamental achievement of the progress from an absolutist monarchy to democratic government.
In the case of inherited wealth there were important mechanisms of the law which protected the legitimate expectations of a testator’s family. Until about the end of the nineteenth century in England a system of primogeniture was maintained by the landed classes which ensured, by the mechanism of the legal settlement of the fee simple, that land, the most significant form of wealth socially, was always under the control of the male heir, although the heir was only a life tenant and could not sell it. That structure has completely broken down and was never relevant in Australia.
The members of a family other than the heir-at-law were provided for, in most families, of even moderate wealth, by a system of inter vivos settlements. Usually upon the marriage of two persons it was common for their respective families to place property in a settlement which gave the income to the husband for life, which might make some small provision for the wife during the marriage, by way of “pin” money, and which gave her an income for life should her husband predecease her. After the death of the marriage partners, the fund would usually go to the issue of the marriage, or if there were no issue, back to the families which had originally provided it. Usually issues’ interests would be resettled upon their marriage, so maintaining continuity of property control within a series of settlements.
The family settlement was the creation of equity and was sustained by it. It consisted of personalty rather than realty. Its main objective was to protect the wife from the common law rule that a woman’s property became her husband’s upon marriage. It could also ensure that siblings of the heir could count upon receiving some part of inherited family wealth without suffering from the paternal tyranny of unfettered freedom of testamentary disposition. This practice could be described as a form of inter vivos inheritance. Family settlements are still being created. They can perform a role in tax planning and they can be a valuable means of protecting persons not well able to manage property for themselves.
There was another reason why testamentary injustice was not of great significance at least earlier in history. That was that the widow of a deceased person did have rights of dower, that is the right to a certain part of the estate. Those rights were effectively taken from her by the Dower Act of 1833.2 In many overseas jurisdictions a surviving spouse still has an overriding right to a part of the estate whatever the will says.3
It is not without significance that it was in the colonies, where legal settlements of land and equitable family settlements of personalty were uncommon, that testamentary freedom was first found to be intolerable and family provision legislation was introduced - the most significant revolution in succession law, arguably, since Roman times.
What was intolerable was not the freedom conferred on the testator, but the fact that a testator might leave a surviving spouse, usually a surviving wife, and children unprovided for.
Despite the fact that the principal objective of the law of wills seems to be to ensure freedom of disposition to testators, there is nevertheless within the law of wills some jurisprudence which emphasises moral propriety. It emerges in dicta concerning the prerequisites of testamentary capacity in establishing testamentary intention.
For instance there are the oft quoted words of Sir James Hannen in Boughton v Knight:4
In one sense, the first phrase, sound mind, covers the whole subject; but emphasis is laid upon two particular functions of the mind, which must be in sound order to create a capacity for the making of a will; there must be a memory to recall the several persons who may be fitting objects of the testator’s bounty, and an understanding to comprehend their claim upon him. [original emphasis]
It is significant that the moral dimension implicit in these words is conceived as relevant only to the testator’s capacity to make a will. No similar moral dimension is to be found in the other prerequisite of testamentary intention, namely the testator’s knowledge and approval of the contents of the will. If a testator deliberately and knowingly makes a will which excludes those who may be fitting objects of the testator’s bounty, or who have, to the testator’s knowledge, proper claims upon him or her, the will cannot be challenged on the grounds of incapacity.
As De Groot and Nickel observe:5
A person’s freedom to dispose of his or her estate remains untouched except to the extent that there has been a failure to make proper provision for the maintenance and support of those who are seen at the time as entitled to such maintenance and support. Apart from this exception, the court will not rewrite the will even where the deceased has been unjust towards deserving members of his or her family.
A major issue to be considered concerning the future of family provision legislation must therefore be whether the claims of fitting objects of a capable testator’s recall and understanding can be found a more significant place within the legislation without discarding reasonable freedom of disposition by will of wealth amassed by a testator during his or her lifetime. This would entail a significant change of philosophical position about the nature of rights of inheritance. A review of the nature of those rights is arguably not within the framework of a law reform reference to achieve uniformity or consistency of the existing law among States and Territories.
1.3 INTESTACY RULES
Intestacy rules cannot take the place of a will. They have always offered, at best, rough justice. Until very recently it is doubtful whether anyone would have questioned the proposition that intestacy laws cannot benefit anyone except the lawful spouse of the intestate, legitimate issue of the intestate, and the intestate’s kin (that is, legitimate descendants of a common ancestor of the intestate). Changes, from time to time, in the benefits which intestacy rules have conferred upon the spouse of an intestate have reflected the position in society and within the family of the widow6 of a deceased person; but they commonly reflected a view that the widow’s place in the family is one of dependence. A major issue of intestacy law reform is the extent to which financial independence should be conferred upon a surviving spouse so far as the estate can afford it.
It is only in the latter part of the twentieth century that intestacy benefits have been extended, in Australia, to illegitimate issue of the intestate, and that it has become possible to contemplate extending intestacy benefits to, for example, a de facto partner of an intestate. In June 1993 the Queensland Law Reform Commission7 recommended that intestacy benefits should be conferred upon certain de facto partners8 and proposed an extended definition of de facto partner in the following terms:9
This definition is not quoted for the purpose of endorsing it: but to show that there is an arguable case, even in the comparatively rigid context of intestacy rules, for extending benefits beyond the historically narrow legal definition of the family. However, in the context of a reference to render existing laws uniform, it cannot be regarded as an issue for uniformity unless it, or something like it, has been enacted before the project reaches fruition.
Other practical parameters necessarily prevent the development of intestacy rules from performing a sophisticated role in the succession system.
Intestacy rules must take account of certain statistical verities, such as the statistical fact that, in Australia, in 1992, the average life expectancy for men was 74.54 years whilst that for women was 80.54.10 This statistic alone has the effect that intestacy rules should be contemplating the needs of a surviving spouse in an age group which is past the age of regular employment as far as both men and women are concerned; and well past the age of child bearing as far as women are concerned. It is a statistic which also implies that any children of the intestate and a surviving spouse will be mature, even middle aged adults, and so not likely to be dependent on the intestate at the time of the intestate’s death, or to be residing with the intestate. Despite the importance and relevance of this statistical context, it has changed remarkably over the years. Thus the average life expectancies for the years 1881-1891 were 47.2 years for men and 50.8 years for women.11
In one sense intestacy should only be concerned with statistical averages. To insert into intestacy rules provisions about an event which may possibly occur once in twenty years could cause the rules to become irrelevantly extensive. While it would be possible to make provision for certain uncommon events, other events not even contemplated as possibilities would inevitably occur, which events would not be the subject of any specific intestacy rule. For example, if a husband and wife are proceeding towards a divorce and have completed a property settlement, but one of them dies intestate before the divorce is finalised, so that the other inherits as on intestacy, as well as taking the settled property, it might be argued that the intestacy rules should be changed to take that into account. As just as that may be in the circumstance of the particular case, however, one may question the desirability of legislating for an event which is likely to occur once in the proverbial blue moon: divorce is not a common phenomenon in the age groups with which intestacy rules are concerned and neither is death after a property settlement but before divorce. It is arguable that family provision legislation is the proper place to deal with the statistically rare phenomenon.
Another intrinsic and impersonal constraint which limits the efficacy of intestacy rules is that they cannot distinguish between the needy and the affluent, or the deserving and the undeserving. This particularly affects a person who sacrifices his or her independence and perhaps career to look after an invalid parent or other relative;12 and who finds, after so doing, if the parent or relative dies intestate, that he or she has to share the estate with others. The consequence of this may well be that the carer has to move out of a home shared with the deceased for perhaps many years, or that he or she is not entitled to anything at all.
The desire of the surviving, usually female, spouse, or carer, to remain independent, and to live in the matrimonial home, or in other suitable independent accommodation for as long as possible, has become an accepted fact of contemporary life, even if it were not so half a century ago. To a certain extent this is a product of the facts that more families own their own home than formerly and that children are less able to undertake the care of an ailing parent often because they all have work responsibilities. The recent prevalence of joint ownership of the matrimonial home by marriage, and even de facto, partners has enabled the surviving partner to remain in the matrimonial home as a matter of right whatever his or her position might be by reason of the succession laws. The growth of the practice of joint ownership of the matrimonial home has engendered an expectation, even in partners who have not acquired a matrimonial home in joint tenancy, that a surviving partner will remain in the matrimonial home, or should be able to acquire a suitable home.
In some States intestacy rules appear to have attempted to embody a concept of recognising the surviving spouse’s need for independent accommodation by allowing a lump sum to the surviving spouse of an amount which might be considered to represent the cost of acquiring modest accommodation. The Queensland Law Reform Commission’s Report on Intestacy Rules has as its principal recommendation that a surviving partner should have a home to live in.13
Ensuring the provision of suitable accommodation for the aged is an issue of public financial significance. The issue is whether the costs of caring for the aged should be met by the State or by available family money. Should the succession system try to ensure, to a certain extent, that the needy aged spouse be given preference over the affluent middle aged children of a deceased person? That is, should the State, or the estate, be charged with the maintenance of those who would, if no provision were made for them from the estate, become dependent on the State? And what of those who have displeased the deceased - disobedient children or an “unsatisfactory” spouse? Should the deceased be entitled to disinherit them, whether or not, in so doing, the State would become charged with their maintenance?
1.4 FAMILY PROVISION
Just as the law of wills is limited by its adherence to the notion of the freedom of the testator to dispose of his or her property; and the intestacy rules are constrained by statistical and impersonal imperatives, so the law of family provision is capable of rectifying injustices caused by wills or the intestacy rules only in certain limited cases, carefully defined by legislation. In the Australian States and Territories there are significant divergences of approach to a number of substantial issues, including: entitlement to make application for provision; the adequacy of provision made, if any; the property from which provision can be made, and the matters which the Courts must take into account when considering the application.
1.5 CASE-LAW AND UNIFORMITY
Over the years the statutory language of family provision legislation throughout Australia has been glossed over, in some contexts, by extensive case-law. For instance, the Courts have become more liberal in deciding whether “adequate provision” has been made for the “proper maintenance” of an adult son or daughter of the deceased; and less likely to refuse or reduce provision on the grounds of the applicant’s character or conduct. On the other hand, the Courts are more likely to insist on the making of applications within mandated time limits.
To the extent that legislation passed to secure uniformity retains language found in the original statutes it must be made clear that the subsequent development of the case-law relative to such language has not been repudiated; and that the Courts may continue, in the future, to take into account changes in social attitudes in considering applications brought under the legislation.
FOOTNOTES
1. Bentham J “Of Wills” Principles of the Civil Code in The Works of Jeremy Bentham (1838) Part II Ch V at 337.
2. For a history of the widow’s right of dower see Holdsworth WS A History of English Law (Methuen & Co Ltd 5th ed 1942) Vol III at 189-197.
3. For instance under the American Uniform Probate Code s2-201-2-207 a surviving spouse has a right to elect to take a certain share in preference to any provision made for the spouse by the will.
4. (1873) LR 3 P & D 64 at 65-66.
5. De Groot J K and Nickel B W Family Provision in Australia and New Zealand (Butterworths 1993) (hereafter cited as “De Groot and Nickel”) at 3-4.
6. Reference is made to “widow” because of the greater likelihood that a wife will outlive her husband. See 5-6 below for the statistics for the average life expectancies for men and women.
7. Queensland Law Reform Commission Intestacy Rules Report No 42 June 1993.
8. Id at paras 2.3.1-2.3.3.
9. Id at para 2.3.1.
10. Australian Bureau of Statistics Trends in Mortality June 1994 at 6.
11. Australian Bureau of Statistics Women’s Health December 1994 at 13.
12. See Australian Bureau of Statistics Queensland Families Facts and Figures June 1994 at 102-103: In 1993 almost 250,000 people aged 55 and over with a disability were living in Queensland households. More than 150,00 required assistance in everyday tasks.
13. Queensland Law Reform Commission Intestacy Rules Report No 42 June 1993. See para 1.12 (c),(d),(e),(f) and (g).
