Centring Morality: Balancing Rights and Responsibilities in Inheritance Claims
It is the duty of the Court, so far as possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not loving, husband, owes towards his wife or towards his children, as the case may be. — Edwards J, in Re Allardice, Allardice v Allardice (1910) 29 NSWLR 959
With this statement, Edwards J sparked a debate that continues today. At the heart of this controversy lies the issue of ‘moral duty’ and its role in determining the division of property amongst family members in inheritance claims. In practice, moral duty overrides notions of testamentary freedom — namely, the right of an individual to distribute their assets as they wish, unrestrained by either legislative or conceptual obligations. In opposing corners of this debate, two scholars make prominent arguments for and against moral duty. Virginia Grainer argues that ‘moral duty’ is too subjective and ought to be replaced with a three-pronged framework that narrows the scope of the court’s powers to override a testator’s wishes. In contrast, Rosalind Atherton reminds us that succession laws are founded on Locke’s natural rights principles, a notion that finds support in the High Court ruling of Vigolo v Bostin.
Drawing upon philosophical principles, I argue that although Grainer attempts to create a framework that moves away from moral duty, her needs-based test is still grounded in foundational notions of morality. I also reject her argument that assessments of moral duty and moral claim are inherently subjective. I then assess the value of Atherton’s account of ‘natural rights’, and Lockian principles
I. Historical and Legal Background of Family Provision Law
Family provision legislation is founded on the gendered beliefs of labour that were notable in the late nineteenth and early twentieth centuries when the husband was the dominant breadwinner of the family. The issue arose in the late 1800s when absolute testamentary freedom allowed husbands to leave their estates to whomever, leaving their widows and remaining children in a state of destitution and therefore reliant on State welfare systems.
New Zealand pioneered the move towards addressing this equitable injustice by introducing a legislative framework intended to empower the courts to accommodate the equitable needs of surviving spouses and their children in the event that a testator had failed to account for their ‘adequate provision for the proper maintenance and support’. This framework was first delivered in the Testator’s Family Maintenance Act in 1900 (NZ) and was shortly adopted by other Westminster systems; the UK introduced an equivalent Act in 1938, and Australia followed suit through an incremental introduction across its jurisdictions from 1906. In the ACT, the Family Provision Act 1969 empowers the Supreme Court to make orders “as that court thinks fit” provided that “adequate provision for the proper maintenance, education or advancement in life” of an applicant has not been accounted for in the testator’s will.
While the distinct language of legislative instruments varies across each jurisdiction, the general structure of the Acts empowers the court to make an order as it thinks fit and proper to remedy an equitable injustice experienced by a familial beneficiary arising out of a testamentary trust. In Vigolo v Bostin, Gleeson CJ confirmed the relevance of morality in the following statement in his analysis of fit and proper:
Fitness and propriety are value-laden concepts. Those values must have a source external to the decision-maker. Morality is the source of many of the values that are expressed in the common law, in statutes, and in discretionary judicial decision-making.
II. Grainer’s Critique of Moral Duty
Virginia Grainer’s 1994 challenge to the role of moral duty in family provision legislation remains relevant today as she places particular emphasis on the role of the social, political and economic climate in determining the inappropriateness of moral duty. And while the socio-political climate has changed since the 1990s, the issues that existed then to create equitable barriers to marginalised members of society have remained observable in contemporary society.
She argues that decisions founded on morality amount to a subjective value judgement that attempt to account for incalculable variables such as social class gender, sexual orientation, age, location and mobility, amongst others. Her list mirrors Elisabeth Fiorenza’s kyriarchal pillars of structured and systematic oppression experienced by marginalised members of society. Grainer argues that the court, in assessing these forms of societal injustices, is faced with the difficult task of creating an objective test for what, she deems, to be deeply subjective judgement; one that can only be assessed adequately by those personally involved, and not by the judiciary.
However, societal structures of oppression are no longer considered entirely subjective. Contemporary methods are available to quantify a person’s societal inequality and the likely impact that inequality will have on a person’s liveability. Therefore, it is not beyond the feasibility of the court to quantify a person’s subjective lived experiences as a step towards reaching an equitable remedy. The Family Court already utilises such approaches in the creation of child support orders.
In contrast to ‘moral duty’, Grainer sets out a needs-based test that considers (i) the needs of dependants; (ii) any promises made by the testator to beneficiaries in exchange for goods or services provided to the testator by their beneficiary during their lifetime; and (iii) any ‘special circumstances’ when property is identified as family property and should be dealt with as such. As step two operates within the realm of contract law, and Grainer fails to define what ‘special circumstances’ amounts to in her third step (beyond making a vague reference to Maori concepts of land ownership) I will primarily address Grainer’s first step, which is the character of her needs-based test.
When we deconstruct the term ’need’ through an objective lens, we can see that a person’s needs are often determined by reference to the absence of certain conditions that are directly attributable to their status as a person subject to one or more societal barriers. It is grounded in the idea that there are baseline conditions that each person ought to possess in order to maintain a level of dignity and autonomy over their life. This notion of needs also arises directly from equitable principles aimed at alleviating poverty and societal inequality that date back to 1601. Therefore, it can be argued that Grainer’s notion of a needs-based test is, in fact, informed by equitable principles of just and fair — both notions which, when traced back through foundational tenets of legal philosophy, finds its origins in the fulfilment of a moral duty by those who hold equity, and a moral claim from those who are owed equitable equality.
III. Atherton and Testamentary Freedom
A critical issue that arises from the idea of an enforced moral duty is the diminishment of testamentary freedom. In her 1999 paper, Atherton draws upon Locke’s principle of notions of liberty and freedom, which is fundamentally tied to the rights of one to manage property without interference from the State. However, contemporary cases reflect a judicial divide on the limits of testamentary freedom. In the obiter of Singer v Berghouse (1994), Justice Murphy described ‘moral duty’ as a ‘gloss’ upon the legislation, implying that considerations of morality impose an additional layer on the legislative interpretation of family provisions rather than being considered an automatically presumptive element of those provisions.
In contrast, Atherton argues that moral duty was intentionally introduced to provide a necessary check on testamentary freedom and finds its origin in the forefather and framework of seventeenth-century property rights; namely John Locke’s theories of liberty and natural rights. Locke’s principles are grounded in the notion that one obtains property by (i) appropriating it from nature and (ii) applying labour to the land. When these two elements are met, one is justified in retaining that land and claiming it as their own, and subsequently, this right to retain one’s property is not subject to interference from the Crown.
Locke’s theory arose at a pivotal moment in English history, when discourses that advocated against an absolutist monarchy were at the forefront of political debate. The mechanism for protecting individual property rights lay in the hands of Parliament, whose role was to pass laws that would create the most good for the greatest number of people — thereby developing a societal framework that embodies Jeremy Bentham’s principle of utilitarianism. Combined, the English Parliament introduced laws that enmeshed utilitarianism and natural property rights and moved society towards one whose sole objective became the attainment of property: The ‘greatest good’ is the pursuit of individual happiness, which includes the acquisition of property obtained by one’s individual exertion’.
As a consequence, while testamentary freedom is a natural right, the freedom for it to operate unfettered contradicts utilitarianism principles. Atherton convincingly explains how this paradox was resolved by Bentham and John Stuart Mill’s theories of property and testation, which concluded that the right to bequest was natural, but the right to inheritance is not — and should therefore be governed appropriately. Bentham and Mill’s discourse arrived at the following conclusion: Testamentary Freedom ought to account for the duty of provision for family and thus must operate within a framework of moral responsibility.
IV. Parental Duties and the Good Life Principle
While, Locke’s ‘good life’ principle is founded on the concept that life should be aimed at pursuing one’s individual greatest good, it also maintains that we should to strive to bring about a societal good too. In short, it is the idea that if one lives in society, one ought to bring value to it, and this is achieved through a person’s liberty and free will to pursue a path that will bring about the most good. The notion is that the freedom to pursue one’s own attainment and a good quality of life is that a person will be uninhibited by racial, gendered, economic or social-political status. When we apply this notion to the fiduciary relationship that a parent has towards their child — Locke’s good life principle, when paired with Rawlsian principles or morality, supports the argument that parents have a moral duty to ensure their children are adequately and properly provided for in order to achieve a good life. In the context of family provision it would support two premises:
1. Moral duty: That parents are morally obligated to ensure that their children have the best possible circumstances provided to them to obtain a good life; and
2. Moral claim: Where a parent has failed to provide support to achieve a good life, either in childhood or adulthood, the courts ought to ensure this inadequacy is properly addressed through an appropriate distribution of the parent’s estate.
These premises are reflected in a number of New Zealand High Court cases where the court has held that testators are duty-bound towards their children to make amends for their abuse, neglect or disinterest that occurred either during childhood or throughout their adult years. Further, substantive evidence founded in the social sciences demonstrates that cumulative inequality stemming from early adversity, such as experiencing parental abuse or neglect, has an enormous detrimental effect on an individual’s life trajectory in terms of educational attainment, health, lifetime income and happiness. A person’s life trajectory is dualistic in nature as it is both the consequence of deficient agency and the causation of future agency — hence, the theories surrounding early adversity primarily centre around the cumulative effects of inequality. ‘Agency’, in turn, forms a direct link back to Locke’s good life principle, as a person with uninhibited agency has the freedom to pursue fulfilling and beneficial opportunities for both themselves and society at large. If a testator fails to create the foundational environment for a person to develop this agency, there is a moral duty to remedy this cumulative equitable injustice.
V. Rawls’ Difference Principle and Distributive Justice
Before delivering his pivotal statement in Allardice, Edwards J first implied an element of morality in Laird by referencing the term’ natural duty’ to describe the obligations the court assumes to a testator to hold. ‘Natural duty’ implies that there is no element of artificiality present and that it is a duty that arises organically out of the State of existing in a civil society. It is a duty that exists outside of institutional frameworks and instead arises simply from the natural order of human nature. In essence, moral duty arises from natural laws.
Natural Laws are entrenched in the fabric of organised society and address societal moral discrepancies that result in disadvantages experienced by members of that society; further, Rawls’s difference principle aims to support the notion of distributive justice which entails correcting imbalances of power or inequity at the cost to those who hold power and equity. Welfare-based principles arise from the idea of distributive justice and advance the notion that material equality, resources and liberty are subjects that ought to be distributed to fairly remedy any inequities that give rise to a diminished ‘well-being’ that otherwise would be experienced equally in circumstances where the inequalities did not exist. The welfare-based principle, when advocated as an actional mechanism of utilitarianism, gives rise to the moral theory of consequentialism, which provides the framework that something can be morally correct by measuring the consequences that arise from it. In short,
P1: Natural laws give rise to natural duties, which are inherent obligations arising from human nature and are reflected in the formal laws of a well-organised society.
P2: Natural laws support principles of distributive justice, such as the equitable distribution of an estate, to correct social inequalities.
P3: Distributive justice is a form of consequentialist morality.
C: Therefore, laws aimed at addressing social inequalities through distributive justice, such as family provision laws, adequately and properly address issues of moral duties and moral claims and are not a mere ‘gloss’ but form the fabric of legislative frameworks.
VI. Conclusion
Moral duty does not amount to a mere ‘gloss’ on the legislation and neither should it be discarded as subjective judgement by the judiciary. Instead, morality finds its place in family provision laws through deeply entrenched philosophical concepts of natural rights and liberty. These principles inform the institutional framework for a society that values property and attainment in the pursuit of individual and societal happiness, which, in turn, gives rise to the need to address testamentary inequities through equitable remedies grounded in distributive justice. Together, these principles and theories support the validity of the testator moral obligations to provide for their family and support the notion of a moral claim where a testator has failed to uphold these values.
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