Family Provision in New Zealand and Australia

New Zealand and Australia are named in that order in the title because New Zealand was the first to develop the discretionary family provision jurisdiction, in 1900, that now applies in New Zealand, Australia, and much of the common law world. This allows courts to make awards to family members from the estate of the deceased. Originally benefitting only the surviving spouse and children, family provision has extended the rules of eligibility in line with changes in the meaning of ‘family’. So as well as spouses, claims can also, in many of the Australasian jurisdictions, be made by civil partners, cohabitants, and same-sex partners. Most jurisdictions have also broadened the class of eligible children to include grandchildren and stepchildren who were being maintained by the deceased as well as children born of new reproductive techniques. Both New Zealand and Australia have significant indigenous populations and their eligibility to claim family provision is modified to accord with their customary law. Over time, the courts have adopted a much broader view of a deceased’s ‘moral duty’ to his or her family, particularly in regard to claims by adult children. The size of awards has increased correspondingly. The chapter discusses this development, as well as the increasing relevance of Indigenous customary law and how the courts deal with disentitling conduct. In view of the greatly expanded scope of family provision in New Zealand and Australia, testamentary freedom may be only an illusion in these jurisdictions.

Legal Rights in Scotland

The rules of mandatory family protection in Scotland date from the late Middle Ages and were a close copy of the rules then (but no longer) in force in England. Originally they comprised two distinct ‘legal rights’ (as they came much later to be known). In the first place, the surviving spouse had a usufruct in the immovable property of the deceased, known as ‘terce’ (for widows) and ‘courtesy’ (for widowers). Courtesy extended to the whole immovable property, terce only to one-third. In the second place, the movable property of the deceased was divided into three equal parts. The surviving spouse had a claim (the ‘relict’s right’ or jus relictae) to one part, and the surviving children to another (‘legitim’). The final one-third (‘dead’s part’) was the testator’s to dispose of in his will. Terce and courtesy were abolished, rather unthinkingly, in 1964. Today, therefore, the surviving spouse and children are protected against disinheritance only in respect of movable property – a weak form of protection made weaker still by the absence of anti-avoidance measures that would prevent testators giving property away during their lifetimes. The law is widely acknowledged to be unsatisfactory, but there is less agreement as to how it should be changed. One view is that legal rights should be extended to immovable property. Another view is that legitim should be replaced by a maintenance claim for dependent children (only). In the face of these competing views, the Scottish Government has recently decided to leave the law unchanged.

Compulsory Portion in Hungary

Following the model of continental European law, Hungarian law introduced the compulsory portion in 1853, allowing in the closest blood-relatives to benefit from the estate of a deceased person against the testator’s wishes. In the course of the latest reform, the possible abolition (or at least limitation) of the compulsory portion was raised. However, at the time of the creation of the Civil Code of 2013 the legislator took the view that the compulsory portion had already taken root in the general legal awareness of the population and that its continuation could be justified. This view was strengthened by the fact that the majority of contemporary continental legal systems, in their quest for the protection of the family, tend to recognize a claim by the closest relatives to a compulsory portion. Traditionally in Hungarian law, the descendants and parents of the deceased were entitled to a compulsory portion in accordance with the order of intestate succession. Only since 1960 has the law also recognized the spouse as a person entitled to a compulsory portion. Previously the approach was that the spouse should be compensated through the rules of matrimonial property law and intestate succession. Since 2009 registered partners have been put in the same position as a spouse. Until 2014, the extent of the compulsory portion was one-half of the intestate share of the person entitled to a compulsory portion; today it is one-third.

Compulsory Portion and Other Aspects of Family Protection in Austria

The Austrian law of succession boasts some rather strong mechanisms for overriding a will in the interest of surviving family members. Taken together, the law of compulsory portion, the various statutory legacies, and the maintenance claims significantly reduce a testator’s freedom to pass on his or her property as the testator deems appropriate. Yet, Austrian law does not necessarily ensure that all close family members obtain minimum levels of subsistence, as the group of individuals entitled to family protection benefits is small and more or less restricted to the surviving spouse or registered partner and descendants. The position of the surviving spouse or registered partner has been continuously strengthened over the years but there is still an unfortunate discrepancy between what a surviving spouse or partner is entitled to upon death as compared with the situation upon divorce. The existing patchwork of mechanisms does not seem to have created significant problems, but still it is fair to say that the Austrian law of family protection lacks a consistent approach. This is still true after major reform in 2015, which to some extent restricted entitlements under the law of compulsory portion but also introduced further compulsory benefits. Most conspicuously, the new ‘care legacy’ may entail sweeping changes for smaller estates, and it may well happen that the whole estate goes to one or several caring family members, with heirs possibly even having to pay out of their own pockets.

Mandatory Family Protection in the Common Law Tradition

In medieval English law, widows were entitled to dower and widowers to curtesy, both being life interests in the deceased’s real property. In addition, the personal property of the deceased was divided according to a tripartite system, with surviving spouse and children being entitled to one-third each and only the final third being available for disposal by will. The tripartite system was abandoned in the early modern period though it survives still in Scotland. But dower and curtesy remained and were exported to the British Empire. In the United States they had a rich future, developing into the fixed ‘elective share’ of the deceased’s estate which is available, in many states, for the surviving spouse. Elsewhere, dower and curtesy faded away during the nineteenth century giving rise to almost complete freedom of testation. This freedom was, however, short-lived. In 1900, New Zealand, having considered but rejected the tripartite system of fixed shares still used in Scotland, introduced a discretionary ‘family provision’ by which courts could make awards to close family members. The New Zealand model was soon copied throughout Australia, in the common law provinces of Canada, and, in 1938, in England and Wales itself. The chapter considers the reasons for the abandonment of freedom of testation, and examines the debate in New Zealand, England, and the Republic of Ireland as to whether family protection was best achieved by a system of fixed shares, as in Scotland, or by a system involving judicial discretion.

Mandatory Family Protection in the Civilian Tradition

The chapter traces the development of mandatory family protection from Roman law through the ius commune to the modern civilian codifications. The Justinianic reform of 542 AD having failed to streamline and simplify the rules of classical Roman law, it was left to the draftsmen of the codifications from the end of the eighteenth century onwards to tackle that task. Particularly influential were the French Code civil of 1804 and the Austrian Civil Code of 1811. Germany adopted the Austrian model of a ‘compulsory portion’ (ie a personal claim for the value of a part of the estate). Elsewhere the French model of ‘forced heirship’ (part of the testator’s property is reserved to his closest relatives) was extremely influential, although in modern times some of the Romanistic countries have changed from forced heirship to compulsory portion. The chapter also considers the post-socialist countries of Central and Eastern Europe, the Nordic countries, and the codifications in the Americas. A number of lines of development can be traced in comparative perspective, among them a tendency to weaken the position of the deceased’s closest family members (by granting them merely a personal claim in money rather than the position of co-heirs, by reducing the quotas to which they are entitled, and by drawing the range of the deceased’s relatives entitled to mandatory protection more narrowly). The surviving spouse’s position, on the other hand, has been strengthened. Characteristic for a number of civilian legal systems is the endeavour in various ways to render to law of mandatory family protection more flexible. The implementation of the concept of a needs-based claim for maintenance is one of the devices attesting to the quest for increased flexibility.

Compulsory Portion and Minimum Inheritance in Norway

The chapter describes the current law of succession in Norway with regard to mandatory protection of family members, explains its historical background, and situates it in the debates surrounding the changed realities of family life in the twenty-first century. Family law and family life have undergone many changes, not least the increasing prevalence of second or third families/remarriages and cohabitation, as well as the acceptance of same-sex families. The chapter argues that, despite recent reform proposals, the limited changes implemented by reforms in 2019 fall short of what is required of a modern law of succession for all families in Norway.

Family Protection in the United States of America

In the United States, mandatory family protection is often subordinated to freedom of testation. Although spousal protection provisions exist, the content of these laws often differs dramatically from state to state. By contrast, children and other descendants of the deceased have little or no protection against disinheritance except in Louisiana. Related legal doctrines, such as the law of undue influence do, however, often serve some protective role against the unreasonable omission of descendants from a testator’s will. Even in Louisiana, which still maintains a doctrine of forced heirship, the content of the protection has changed from a law providing for family solidarity to one imposing n alimentary obligation upon the deceased in favour of limited classes of descendants.

Family Provision in South Africa

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

Compulsory Portion in Germany

The compulsory portion of the German law of succession is a personal claim by a close family member of the deceased against the deceased’s heir, or heirs, to receive the value of one-half of his or her intestate share. The range of persons entitled to a compulsory portion is limited to the deceased’s descendants, his parents, and his surviving spouse. The right to a compulsory portion can be lost as a result of having been deprived of it by the deceased (which is possible in a limited number of situations), as a result of being ‘unworthy’ to receive a benefit from the deceased’s estate, or as a result of having waived the right. All in all, the system enacted in the German Civil Code (BGB) in 1900 has proved to be comparatively stable; even the amendments of 2010 as a result of the Act on the Reform of the Law of Succession and Prescription were rather modest and have shifted the balance between freedom of testation and family solidarity only very slightly in the direction of freedom of testation. This is often seen as confirmation that, essentially, the rules of the BGB provide a solution that is both pragmatic and reasonable. The Federal Constitutional Court has even, in 2005, ruled that a certain minimum participation for children in a deceased’s estate not only does not contravene the constitutional guarantee of ‘property and the right of inheritance’ in Article 14(1) GG, but is itself protected by that provision.