Skip to main content Accessibility help
×
Hostname: page-component-77c89778f8-fv566 Total loading time: 0 Render date: 2024-07-17T10:25:49.538Z Has data issue: false hasContentIssue false

Chapter 6 - A Lament for ‘Testator's Family Maintenance’ – A Good Idea Gone Wrong? Australian Reflections

from PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?

Published online by Cambridge University Press:  29 September 2018

Rosalind Croucher
Affiliation:
Emeritus Professor, Macquarie University, and President, Australian Human Rights Commission, Sydney, Australia
Get access

Summary

’ The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.’

THE POST-MORTEM QUESTION

The Property (Relationships) Act 1976 (NZ) (‘ PRA ‘) is principally concerned with property resolution between couples during their lifetimes. But there is also an aspect that is post-mortem: on the premise that a person, especially a woman, should be no worse offon death than on divorce. It is here that my work comes in. A large part of my research and writing has concerned what was first called ‘Testator's Family Maintenance ‘, after the New Zealand statute of 1900 that brought this legislative genre into being. Such legislation was to be a counterweight to the freedom allowed to testators who could, in theory, leave their property to whomever they liked and, in practice, exclude widows and children. The Testator's Family Maintenance Act 1900 (NZ) enabled a court to override a will, in limited circumstances, in favour of the applicant. In this respect it represented a significant shift in the nineteenth-century laws of inheritance. This legislation is now variously known as ‘family provision‘ or ‘family protection‘ laws. The latest New Zealand iteration is the Family Protection Act 1955 (NZ).

This chapter complements the other chapters, which have focused on the lifetime dynamics and operation of the PRA, in providing insights into legislative interventions on death in favour of certain family members. It also provides some reflections from experiences in Australia.

Type
Chapter
Information
Law and Policy in Modern Family Finance
Property Division in the 21st Century
, pp. 125 - 148
Publisher: Intersentia
Print publication year: 2017

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×