From testamentary freedom to testamentary duty: Finding the balance

Hannah, Frances M. & McGregor-Lowndes, Myles (2008) From testamentary freedom to testamentary duty: Finding the balance.


In recent years legal challenges to charitable bequests by testators' family members have become more common in Australia. Many charities faced with the prospect of a disputed bequest have been reluctant to pursue the matter in the courts. A review of leading reported cases involving charitable bequests in wills reveals that the courts are vigorous in upholding proper family provision as against charitable bequests, portraying this provision as based on moral obligation. Proper provision for family and other dependants is supported by both legislation and the courts on public policy grounds. This concept is confined to Australia, New Zealand, Canada, and to a lesser extent England, which are the only countries with comprehensive family provision legislation. The generational transfer of wealth by baby-boomers over the coming decades provides a scenario for increasing conflict between families and charities over bequests. How should this be balanced with the notion of testamentary freedom?

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ID Code: 15464
Item Type: Other
Refereed: No
Additional Information: CPNS Working Paper Series: no 42
ISBN 9781741072341
Additional URLs:
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Divisions: Current > Research Centres > Australian Centre for Philanthropy and Nonprofit Studies
Current > QUT Faculties and Divisions > QUT Business School
Current > Schools > School of Accountancy
Copyright Owner: Copyright 2008 Queensland University of Technology
Deposited On: 04 Nov 2008 00:00
Last Modified: 25 Sep 2013 12:39

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