A CRITICAL ANALYSIS OF THE FREEDOM OF TESTATION AND THE FAIRNESS OF THE METHODS OF ITS CURTAILMENT
“On the first interpretation, law is a necessary evil at best. We will accept legal constraint grudgingly, acknowledging that it is better than the alternative. But in a perfect world, we would prefer that our liberty remain unrestricted. On the second reading, however, the law is what instructs us in excellence and what makes real joy possible. One becomes a freer player of golf the more one manages to internalize the laws of the game; one becomes increasingly rangy and free in the articulation of English the more one adapts to the laws of syntax, grammar, correct pronunciation, etc.”
– Barron, Robert E. (2017)
Complete freedom of testation is a system of testamentary succession that affords the testator great freedom of discretion on howsoever and to whomsoever it pleases him to dispose his property. Two views, the common law and the civil law views, vary in their treatment of testamentary disposition of property. Common law countries, in contrast to civil law countries, uphold the individualistic view of property ownership, as opposed to the view of property as “something owned by a family unit,” which is tantamount to a grant of unbridled freedom of testamentary disposition to the individual. This individualistic view often results to an unheeded moral obligation to support an individual’s familial relations or close relatives. Civil law countries, such as France, imposed limits upon free testation including, among others, the system of legitime or the forced disposition of the property in favor of the spouse, descendants or close relatives and ascendants.
In the modern reading, however, the fine line of distinction is blurred. For instance in the United States which espouses the common law view, when testators write their will “their pattern of distribution is very similar to that which is required under the traditional French inheritance law” or a distribution of property to the spouse and the children in equal shares. Both countries have high rates of intestacy which means that “in both countries, the majority of individuals pass all of their property to their spouse and children, and the children divide their share evenly. Moreover, even though French inheritance places restrictions upon the testator’s freedom, French law “might provide even greater protection than inheritance law in the United States.” This is because “the United States restricts freedom of testation in indirect ways, such as through the doctrines of undue influence and lack of mental capacity.”
Depending upon which jurisdiction one is looking into freedom of testation shoulders varying degrees of restrictions to the exercise of the testator’s liberty to pursue the testamentary disposition of his estate. Three of the general and widely-known devises that curtail the complete sovereignty of the testator’s will are the forced heirship system, the dictates of moral obligation to support one’s close relatives based on customs, and the reposing upon the court of the discretion to make a provision for the deceased’s relatives in case of an absence of such in the former’s will.
RESTRICTION ON THE FREEDOM OF TESTATION: FORCED HEIRSHIP
Through the forced succession or heirship scheme children of the deceased testator receives automatically, by force of law, a portion to the estate of the decedent notwithstanding the silence of the will to grant the child of such portion or of the contrary wishes of the testator.
Under the 1975 Inheritance Act of the English laws, the spouses, civil partners, co-habitees, children and dependents are the forced heirs or those who are entitled to a portion of the property of a testator who disinherited them.
As a general rule, under the law of testate succession in India, the testator is given utmost degree of freedom to deal with his property in any manner fitting to his discretion since no familial moral claim or forced heirship exists in Indian testamentary succession laws to fetter the testator’s judgment. Exceptions to the rule of the testator’s right, however, are effected for Muslim under the Sharia law and for residents of the state of Goa under the Goa Civil Law. Under the Sharia law a Muslim can only ‘will away one-third of his property while the remaining two-thirds are retained for the family. Under the Goa Civil Law, forced heirship, and community property are recognized notwithstanding the parties’ religious affiliation.
In the United States Louisiana is the only state that provides statutory protection for children in the form of forced heirship. Under the statutory system of forced heirship in Louisiana, the general rule is that children are assured to have a minimum share, which is between one-quarter to one-half, of the decedent’s estate provided they omit the commission of acts deserving of disinheritance. Children contemplated as forced heirs are those below twenty-three years of age, or those suffering from mental incapacity or physical infirmity rendering them incapable of caring for themselves. In the rest of the United States a testator is given the absolute freedom to make his testamentary disposition according to his desires regardless if his children, spouse, relatives or dependents will be disinherited.
In contrast to the freedom to disinherit one’s heirs in the United States, other than in Louisiana, there is under the French system, an “emphasis on family property and blood ties, conceived to promote family solidarity and to conserve family property.” The forced heirship under French laws is in favor children’s forced succession to most of the deceased parent’s property which is an “espousal of the proposition that the blood tie has a relatively more fixed, static quality when compared to the marital relationship, subject as the latter is to a great variety of arrangements as to its economic consequences, and perhaps more subject than the former to variation as to the form of personal relationship.”
RESTRICTION ON THE FREEDOM OF TESTATION: CUSTOMARY OBLIGATION TO PROVIDE SUPPORT TO CLOSE RELATIVES
A restriction based on customs is closely interlinked with forced dispositions. Some previously recognized customary laws have been codified into legislative or constitutional enactments just like how generally-accepted principles and customary laws have become part of treaty obligations in public international law. For instance, New Zealand which is a common law country became “the first common-law jurisdiction to pass legislation providing for certain family members in the case of disinheritance.” Years later England followed the footsteps of New Zealand by “enacting similar legislation and swinging back to the position of restricted testation.”
Some codified legal obligations existed first as customary obligations that are expected to be performed by the citizens of a nation. In line with this, arguments that are advanced to support the imposition of restoring limitation on the freedom of testator are lodged from a sense of nationwide obligation to sport “fairness and fair play”. In 1928, Viscount Astor advanced the view, in a debate in Parliament concerning the necessity of restoring limitations on the freedom of testator, that leaving dependents disinherited is “entirely inconsistent with and contrary to the broad sense of fairness and fair play associated with this country.”
Among the countries that follow customary laws as a rule of conduct for their inheritance disputes are those located in Africa. It has been explained that “customary law is the indigenous law of the various ethnic groups of Africa.” The use of the term ‘African customary law’ it must be noted “does not indicate that there is a single uniform set of customs prevailing in any given country. Rather, it is used as a blanket description covering many different legal systems.” These customary laws are the pre-colonial law in most African states.
However, under customary laws of Africa there is discrimination in inheritance and succession based on sex and it has been noted that “African governments know the discriminatory nature of certain African customary law norms and are therefore complicit in the violation of women’s rights.” These African customary laws actually side in favor of disinheritance.
RESTRICTION ON THE FREEDOM OF TESTATION: COURT’S DELEGATED POWER TO MAKE PROVISIONS IN CASE OF DISINHERITANCE
In England, in the 1873 decided case of Boughton v Knight, Sir John Hannen described the freedom of testator as ‘entirely unfettered’ since a testator ‘may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride.’ The court ruled that notwithstanding the condemnation we may give to the testator’s exercise of exercise of discretion, it still must be given effect. The justification given is that it is considered better to risk the chance of an abuse of the power arising from such liberty than to deprive men of the right to make such a selection as their knowledge of the characters, of the past history, and future prospects of their children or other relatives may demand.”
English laws as we know it today has undergone a significant evolution from the Boughton case. The kind of freedom of testation, as embodied in the Boughton case, is limited by another vital restriction on the testator’s freedom which is the grant to the court of the power to make provision for the relatives when there is such a failure to repose a portion of the testator’s property to them. Under the English laws, this power is granted to the court by the 1975 Inheritance Act. Under section 2 of the Act, the court is empowered to demand from the estate of the decedent financial provision applied for by the qualified applicants. Included in the court’s power is the power to modify both ante-nuptial and post-nuptial agreements, thereby affording the court an effectively wide reach of influence in the contracts entered into by the parties. Section 1 of the Act enumerates the only classes of persons allowed to ask for “reasonable financial provision” from the decedent’s estate.
A SCRUTINY OF THE RESTRICTIONS
Fairness of the limitation may be judged in more ways than one. One of such measures is a scrutiny based on the degree of restriction imposed, the soundness of the legislative intent sought to be achieved and the reasonableness of the means used to achieve the legislative purpose.
SCRUTINY OF THE RESTRICTION: FORCED HEIRSHIP
The arguments against forced heirship include: first, that freedom of testation is a “natural right” of a property owner and thus, the testator must be absolutely free to will the disposition of his property; second, to discourage idleness on the part of the children since the average age of the “orphans” who are disinherited are about forty; third, economic advantage of being able to distribute the property tends to frustrate the unequal distribution of wealth brought by rich families passing inheritance to the same family from one generation to the next making the property only within the class which already owns the property’.
Argument for testamentary freedom that is advanced in its favor is concerned with the incentive to industry and savings productivity since “individuals enjoy bequeathing their assets to the donees of their choice” and by this, testamentary freedom creates an energizing motivation to be productive and to accumulate wealth. “To dictate the persons who shall be a man’s successors and to deny freedom of testation might discourage frugality, thrift and individual initiative.”
Private property is now indubitably recognized as “a function of society and should not be employed to the detriment of its interests”. Because of this function of property, there is a concomitant responsibility of ensuring that its disposition should be that which will serve the greater good. The argument of productivity in favor of complete testamentary freedom is countered by provisions imposing age limits as qualifications for forced heirs incorporated, for instance, in the Inheritance Bill of American laws and in the 1975 Inheritance Act of English laws. Moreover, forced heirship does not necessarily contribute to the unequal distribution of wealth since “vast proportion of the capital of this country (the United States) is represented by the undistributed profits of companies”
Furthermore, it has been asserted in favor of forced heirship, that “the law should be less concerned with occasional undeserved rewards than an occasional withholding from a deserving child that which custom, reflecting basic human impulses, usually accords.” This is because “the detriment of protecting the unworthy child, it is submitted, is more than offset by protection from capricious, malicious or otherwise wrongful disinheritance afforded the worthy child.”
The reasonableness of the limitation is based on the possibility of disinheriting a worthy heir. True, there may be unworthy and undeserving successors who relentlessly committed acts of ingratitude or criminal acts against the testator, but sufficient justification may be found on the legislative policy of ensuring the welfare of vulnerable children. Danger lurks for children without any parent or those with a non-custodial parent or those whose non-custodial parent has remarried and formed a new family. It must be noted too that children with divorced parents are likely to be disinherited as well as non-marital children.
This is the merciless situation the forced heirship system seeks to avoid. The forced heirship under the different jurisdictions analysed imposes the least restrictive means to achieve the equitable purpose of protecting vulnerable children from the snares of legal hullabaloo. The fairness of the forced heirship is evident for three reasons: first, there is an age limit under the system; second, there is a legitimate objective advanced by the system; third, the method imposed offers the least restrictive means of the curtailment of the freedom
SCRUTINY OF THE RESTRICTION: CUSTOMARY OBLIGATION TO PROVIDE SUPPORT TO CLOSE RELATIVES
The customary recognition of channeling property to the close relative of testator is anchored on the rationale of giving recognition to the filial bonds that tie the testator to his relatives. There is a customary obligation to extend support firstly to closest relatives of the testator by reposing portions of the latter’s property to the former before the same is given away to strangers. This customary obligation, finds its basis on the adage ‘charity begins at home.’ This is the sporting of idea of “fairness and fair play” expressed by Viscount Astor in the debate in Parliament in 1928.
But customary obligation is a dangerous and unfair restriction on the testator’s right when it is not backed up by legislative guidelines. Taking as an example the African customary laws which is used to discriminate on testamentary succession in terms of sex purely because it is the practice, customary obligations leave the testator vulnerable and without recourse to law. Portion of the testator’s property may be given away to people not suitable to his desires just because it is the custom.
Customary obligation is an unreasonable restriction, firstly because it is vague, secondly, because the intent of supporting one’s close relative may be better served through other means or method like a legislative enactment created for such purpose and thirdly because the method itself offers not the least restrictive means of the curtailment of the testator’s freedom.
SCRUTINY OF THE RESTRICTION: COURT’S DELEGATED POWER TO MAKE PROVISIONS IN CASE OF DISINHERITANCE
As to the court’s power of discretion under the English laws due safeguard is afforded to the testator since each inheritance dispute is decided on a case-to-case basis according to the guidelines that a court must follow. The Inheritance Act of 1975 laid down these protective measures. Section 1 of the Act enumerates the only classes of persons allowed to ask for “reasonable financial provision” from the decedent’s estate. Section 2 provides for the power of the court to demand from the estate the financial provision. Included in the court’s power is the power to modify both ante-nuptial and post-nuptial agreements, thereby affording the court an effectively wide reach of influence in the contracts entered into by the parties. Section 3 sets forth the factors that the court must consider in deciding whether to grant the award and if in the affirmative in what amount. Section 4 fixes the period within which the court must decide on the applications. Section 5 grants the court power to make interim orders of provision from the estate when the applicant is in urgent need of financial support. Section 6 allows for the variation, suspension, or discharge of orders under section 2 when the circumstances call for such action. Section 7 gives the court power to order a payment in installment, as well as the timing and amount of installments to be made. Section 8 and 9 deem gifts causa mortis as included in the distributable net estate of the decedent. Sections 10 through 13 empower the court to recall properties that were transferred with the intention of circumventing applications for family provision. Section 11 sets aside contracts made without consideration if the transaction aims to defeat applications for family provisions. Sections 14 and 18 are pertinent sections for an applicant who is either a separated or divorced spouse of the decedent. Under Section 14, the court may invalidate the judicial declaration of separation or the decree of divorce made less than twelve months prior to the demise of the testator which allows the applicant-spouse to apply for a family provision. Section 15 authorizes divorce courts to make incorporation agreements in the divorce decree which disallow spouses from applying for family provisions. Sections 16 through 18 grant the court power to review provisions of a maintenance or property settlement agreement which forms part of a divorce decree or judicial separation. Sections 19 through 26 are supplementary provisions as they provide for definitions, evidentiary matters, personal representation and the effects of orders of the court.
The court is tasked to weigh the various conditions affecting the case thereby allowing a holistic take of the case presented before it. Guidelines are set forth under sections 1, 3, 4, 6, 8, 9 to safeguard the judicious disposition of the case, the court is empowered through sections 2, 5, 7, 10, 11, 12, 13, and 14-18, to effectively carry out its task.
The curtailment of the testator’s freedom by an action of the court is enlivened with fairness. Firstly, guidelines are provided to which the court must pattern its exercise of discretion. Secondly, there is a legitimate purpose for the curtailment which is to protect the rights and welfare of disinherited persons. And thirdly, the means by which the court is to exercise the curtailment is the least restrictive one.
A learned man by the name of Robert E. Barron made a distinction between two notions of liberty. The first one, he said, views liberty as the capacity to “hover above two or more options and to make a decision purely on one’s own, without any internal or external compulsion. It is freedom from alien constraint so as to allow freedom for self-expression.” The second one, according to Barron, views freedom as “not this sort of self-creating indifferentism; rather, it is a disciplining of desire to as to make the achievement of the good first possible and then effortless.”
It is the second reading, Barron declares, that allows the exercise of freedom with much more greater joy. Rules are followed as a sort of guide to make an act more freely enjoyable. A piano virtuoso must submit first to rigid rules of music theory and note reading before he is able to play the musical instrument in an unrestrained manner. A speaker of the English language must yield first to rules of grammar before he is able to speak the language fluently.
This is also the case for freedom of testation. Restrictions do curtail the freedom of testation but these fair restrictions are what make the exercise of freedom more meaningful and purposeful. Barron recognized that “on the first interpretation, law is a necessary evil at best… we would prefer that our liberty remain unrestricted. On the second reading, however, the law is what instructs us in excellence and what makes real joy possible.” Following Barron’s explanation, an unbridled freedom is not actual freedom but a senseless and directionless act of will. Forced heirship, reasonable customary obligations, and repose of power to the courts make the freedom of testation fuller and more worthwhile.
Amasur, H & Bijal A, ‘Private Client Tax: Jurisdictional Comparisons – India’, (2012) The European Lawyer Reference.
Brashier, R, ‘Disinheritance and the Modern Family’ (1994).
Madoff, R, ‘A Tale of Two Countries: Comparing the Law of Inheritance’, (2014) Boston College International & Comparative Law Review.
Madoff, R, ‘Immortality and the Law: The Rising Power of The American Dead’, (2010)
Ndulo, M, ‘African Customary Law, Customs, and Women’s Rights Indiana Journal of Global Legal Studies’, Cornell Law Faculty Publications.
Power, R, ‘The Law and the Surviving Spouse: A Comparative Study’, (1964) Indiana Law Journal.
Simes, L, ‘Public Policy and the Dead Hand’, (1955).
Turnipseed, T, ‘Why Shouldn’t I Be Allowed to Leave My Property to Whomever I Choose at My Death? (Or How I learned to Stop Worrying and Start Loving the French)’, (2006) Brandeis Law Journal.
According to the World Health Organization’s 2013 Bulletin women live longer than men in almost all parts of the world. Thus, for the purpose of this article the masculine pronoun shall be used. ‘World health statistics. Geneva: World Health Organization; 2013’ <www.who.int/bulletin/volumes/91/9/12-109710/en/> accessed 9 April 2017
 Ray D. Madoff, “A Tale of Two Countries: Comparing the Law of Inheritance”  Boston College International & Comparative Law Review page 333. Citing THOMAS GLYN WATKIN, “AN HISTORICAL INTRODUCTION TO MODERN CIVIL LAW” 192– 218 (1999).
 Lewis M. Simes, Public Policy and the Dead Hand (1955)
 ibid 2
 Hanisha Amasur & Bijal Ajinka, ‘Private Client Tax: Jurisdictional Comparisons – India’  The European Lawyer Reference, 167
 Ray D. Madoff, Immortality and the Law: The Rising Power of The American Dead (2010)
 ibid 6. Citing LA. Civ. Code Ann. art. 1494 (1987)
 ibid 10
 Richard W. Power, ‘The Law and the Surviving Spouse: A Comparative Study’  Indiana Law Journal 262
 Ralph C. Brashier, Disinheritance and the Modern Family(1994).
 ibid 17
 See 71 Parl. Deb. HL (5TH ser.) 37 (1928)
 Muna Ndulo ‘African Customary Law, Customs, and Women’s Rights Indiana Journal of Global Legal Studies’ Cornell Law Faculty Publications page 88
  LR 3 P & D 64
 Inheritance Act of 1975, s 2(1)(f)
 ‘Freedom of Testation – The Inheritance (Family Provision) Bill’  Modern Law Review page 296
 Terry L. Turnipseed ‘Why Shouldn’t I Be Allowed to Leave My Property to Whomever I Choose at My Death? (Or How I learned to Stop Worrying and Start Loving the French)’  Brandeis Law Journal page 737
 ibid 28
 ibid 28
 ibid 26
 ibid 14
 ibid 2
 Inheritance Act of 1975, s. 2(1)(f)