Reforming Australian inheritance law : tyrannical testators vs greying heirs?

Abstract

Family provision legislation conceived over a century ago in New Zealand sought to curb testamentary freedom which could result in estates left away from spouses and dependants who were entitled to claim newly granted state social income support. The adoption of family provision legislation in Australian jurisdictions and its subsequent statutory developments, with an overlay of judicially fostered notions of ‘moral duty’, has led to distortions in
the original policy intent and application of the legislation. Growing evidence of ‘gaming’ by marginal applicants, rising costs and general uncertainty coupled with changed social circumstances has led law reform bodies to suggest certain curtailments to restore greater testamentary freedom. This article examines the fate of the policy reform process to date and suggests further avenues for law reform.