AustLII Home | Databases | WorldLII | Search | Feedback

Sydney Law Review

Faculty of Law, University of Sydney
You are here:  AustLII >> Databases >> Sydney Law Review >> 2005 >> [2005] SydLawRw 12

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Croucher, Rosalind --- "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" [2005] SydLawRw 12; (2005) 27(2) Sydney Law Review 263

Contracts to Leave Property by Will and Family Provision after Barns v Barns (2003) 196 ALR 65 — Orthodoxy or Aberration?


1. Introduction — Contracts and Family Provision

In 1941 and 1972 the Privy Council heard appeals from New Zealand and New South Wales respectively, both coming to opposite conclusions as to the relationship between a contract to leave property by will and the property (‘estate’) that was available under what is now known collectively as ‘family provision’ legislation. In Dillon v Public Trustee of New Zealand in 1941,[1] the Judicial Committee decided that property the subject of such a contract was available to meet an order under such legislation; in Schaefer v Schuhmann in 1972,[2] it decided that it was not. In Barns v Barns in 2003,[3] the High Court of Australia decided to reject Schaefer and to follow Dillon.

A contract to leave property by will may, for example, be in the form of a promise to leave specific property by will,[4] or a promise to leave the residue of the estate by will.[5] The contract may also be in the form of ‘mutual wills’, where two people agree to make provisions by will binding upon each other.[6] The idea behind such contracts is to provide certainty: to bind the contracting parties to deal with property in a particular way. The peculiar aspect of such arrangements is that the expression of the contract involves a will. In this manner inter vivos transactions overlap with postmortem plans. The problem is the extent to which contract law and wills law intersect — and particularly the extent of the reach of family provision legislation.

Family provision legislation in the form we now know it was first introduced in New Zealand in 1900.[7] It was designed for widows and dependent children who had been omitted from the wills of their husbands and fathers in neglect of the moral obligation of the latter towards their families.[8] It empowered a court to override a will, and later the distribution on intestacy, where defined eligible persons were left without adequate provision for proper maintenance, education or advancement in life.[9] Once introduced in New Zealand, it was copied in all the Australian jurisdictions, the United Kingdom and some of the Canadian provinces.[10]

Provision could only be made out of the estate of the deceased — property owned beneficially by the relevant person as at the date of his or her death. One key issue in the jurisprudence that emerged in relation to the legislation was avoidance. To what extent could, or should, a testator be permitted to avoid the operation of the legislation by dispositions of property: by the disposition of property outright; or through a range of transactions, some of which were ‘will-like’ and others which involved some kind of contractual obligation undertaken. The answers to these questions involved questions of interpretation and questions of public policy. It has been ‘the subject of considerable controversy’.[11] It was an issue, said Gleeson CJ in Barns, ‘which has divided judicial opinion from the earliest days of such legislation’.[12]

As Gleeson CJ observed, there were two solutions that have been applied:

One possible solution is to conclude that the obligation undertaken by the testator is to be given effect in the same way as any other obligation binding on the estate, and that the subject property is not part of the estate available to meet an order for provision under the Act. Another possible solution is to treat an obligation to make a will in a certain form as subject to the operation of the statute.[13]

These solutions reflect different ways of viewing family provision legislation. And, in so doing, they reveal different ideas as to how the law should ‘manage’ issues of property within families: to what extent should notions of ‘family property’ be embodied in the law, as seen for instance in jurisdictions which include ideas of ‘community property’ on marriage and ‘forced heirship’ on death;[14] or should property within families be left to be managed through the law of separate property, embodying ideas of freedom of contract and freedom of property? It is an area not without tension; but that is precisely because there are philosophical ideas with respect to the operation of property concepts within families that are fundamentally at odds with each other. How much should be governed by law; and how much should be left to the individual to decide (which meant, historically, the husband and father)? Any vagueness in statement of principle, or discretionary areas of the law — particularly statute — is wide open for an expression of such divergent views.

This article will explore first the divergence expressed judicially in Dillon and Schaefer, then examples of attempts to amend the legislation in the light of prevailing judicial opinion, followed by a consideration of Barns v Barns itself. The final section of the article analyses the decision in Barns in terms of its impact upon existing law and in the context of the broader framework of family provision law. Here the decision is considered under the rubric ‘aberration or orthodoxy’, located within an analysis of what was the purpose of family provision legislation and the extent to which this is, or could, be expressed in the legislation through judicial interpretation or legislative reform.

2. The Law before Barns v Barns

It is instructive to examine how the ‘solutions’ with respect to contracts to make testamentary dispositions and family provision legislation noted by Gleeson CJ were expressed in the cases and attempts at legislative amendment that set the jurisprudential framework for Barns.

A. Dillon v Public Trustee of New Zealand [1941] AC 294

Dillon was a decision on the perceived public policy of the legislation. It concerned an agreement entered into by Henry Dillon with his children after the death of his first wife. It made arrangements for the succession to the family farm. Henry married again. His will devised the farm as agreed in the contract and left the residue of his estate on trust for his widow, Amy. Amy applied under the New Zealand legislation applicable at that time, the Family Protection Act 1908. She asserted that her husband’s will did not make adequate provision for her proper maintenance and support. Henry’s children argued that the court had no power to vary the provisions of the will where they were simply giving effect to the contract. The majority of the Court of Appeal agreed with the latter submission, holding that the court had no jurisdiction to make an order under the Act that would cut down what the testator had left his children in fulfilment of a contract made for valuable consideration.[15] The Judicial Committee disagreed.

Viscount Simon LC, delivering the judgment of the Judicial Committee, said that it was ‘plainly the case’ that a transfer to his children outright would have been effective to remove the property from the jurisdiction of the court under the legislation.[16] When the property was left to them by will, however, the position was otherwise, as in the instant case. ‘There can be no dispute or doubt’, he said, ‘that the lands left to the children form part of the testator’s estate’:

... [t]hese devisees are not creditors of the estate. They are beneficiaries under the will. There is nothing in the nature of a debt owing to the children from the testator’s estate.[17]

Assuming that all that was promised was the making of the will in a particular way, Henry had done what he had promised: he had made the devise in the will. Moreover, Viscount Simon continued, the contract could not oust the jurisdiction of the court and there was nothing in the Act that restricted the court’s power ‘to redistribute the estate in cases where the provisions in the will are a fulfilment of a contract entered into’.[18]

Where such contracts were effective, the problem is that property was moved out of the estate for the purposes of an order under the Act. This was identified by Myers CJ for the majority of the Court of Appeal. It was precisely the point objected to by the dissenting judge in the Court of Appeal, Smith J, and by the Judicial Committee, on the basis that it flew in the face of the policy of the Act. This was expressed by the Judicial Committee in saying that:

The manifest purpose of the Family Protection Act ... is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for, if the court in its discretion thinks that the distribution of the estate should be altered in their favour, even though the testator wishes by his will to bestow benefits on others, and even though he has framed his will as he contracted to do.[19]

The key aspects of the Judicial Committee’s decision were the interpretation of the Act, and also the intersection between probate and equity. They were not clearly defined. On the one hand, there was the effect of the contract to leave property by will: was the promisee in the position of a creditor, or a beneficiary? That is, did the person take by virtue of the pre-existing obligation, or through the will? On the other hand, there was the question of the impact of such a contract in the context of legislation like the Family Protection Act — and it was only then that questions of the interpretation of the Act and public policy arose. It can be argued that the effect of the contract was being driven by the second question. As noted in the leading United Kingdom text on the subject, Tyler’s Family Provision, Dillon was ‘badly received academically’.[20]

B. Schaefer v Schuhmann [1972] AC 572

Schaefer v Schuhmann, a case which originated in New South Wales, concerned a ‘housekeeper contract’. The testator, Edward Seery, a widower with seven children, made a codicil to his will in June 1966 in which he gave his house and contents to his housekeeper, Elizabeth Schaefer, if she should still be employed by him in this capacity at the time of his death. He asked her to read out the codicil (after she had been working for him for about a month). He then paid her no further wages. Seery died in November 1966. The other beneficiaries in the will were his children. Edward’s adult daughters made a family provision claim in New South Wales against the estate. Street J at first instance based his decision on Dillon’s case and held that three of the four daughters were entitled to provision. He directed that this provision should fall mainly on the house. There were two principal questions considered in the appeal: was the contract regarding the house enforceable; and, if so, did the court have jurisdiction to make an order affecting the house. The Judicial Committee overturned Dillon. It held that there was an enforceable contract and that because of it the court did not have jurisdiction to make an order affecting the house.[21] Schaefer took not as beneficiary, but through the contract.

One particular decision that the Judicial Committee found helpful was the decision of the Court of Appeal in Tasmania, In re Richardson’s Estate,[22] not apparently cited in Dillon’s case. Richardson’s case concerned mutual wills and their interaction with the Tasmanian family provision legislation of the time. The deceased and his de facto wife made mutual wills, effectively excluding the deceased’s lawful wife and daughter from his estate. The gist of the decision was that the rights of the promisee under such arrangements ‘arise contractually and exist independently of the will’.[23] And, if it was thought appropriate to override such contracts, this was not a matter for the courts, but for the legislature.[24]

While the majority opinion was in favour of the contract approach, Lord Simon of Glaisdale expressed a strong dissenting opinion about what he saw as the policy of the legislation:

The legislative intention cannot  ...  be in doubt: it was to prevent family dependants being thrown on the world with inadequate provision, when the person on whom they were dependent dies possessed of sufficient estate to provide for or contribute towards their maintenance. This was the ‘mischief’ for which the statute was providing a remedy; and the courts should endeavour so to construe the statute as to advance the remedy and abate the mischief ...[25]

The divergence between the majority and the dissentient captures the contrasting views about the purpose, and therefore the approach to construction, of the legislation. For the majority the line between inter vivos transactions and wills was clear: while there may be an overlap (in the case of contracts to make wills in particular ways), the effect was distinct and separate. The purpose of the legislation, while beneficent, was not unduly intrusive upon the estate, and particularly upon the arrangement of matters inter vivos. For Lord Simon, the dissentient, the ‘mischief’ to which the legislation was directed meant something entirely different and warranted just such an intrusion. It was a sharp divide.

C. Attempts to Amend the Legislation

In the years preceding the decision in Dillon, it had been the understanding of those working with the legislation that it did not apply to transactions that were effective as inter vivos transactions. The attempts to reform the legislation with respect to its property reach were accordingly founded on that premise. In New South Wales in the 1920s, for example, it had been proposed, unsuccessfully, to attach gifts made within one year of the deceased’s death.[26] This amendment was prompted, it seems, by several letters to the Attorney General concerning the ease of evading the provisions of the Act by gifts made shortly before death.[27] In the 1930s the matter was given passing consideration again in New South Wales, once more apparently prompted by specific correspondence arguing that by inter vivos dispositions ‘the whole object and intention of the Act is defeated and a widow and children can be left penniless’.[28] Juxtaposed to such a view was a consideration of testamentary freedom: that where the testator had made gifts or settlements prior to death there was probably a good reason for it.[29] This was a view entirely consistent with the logic of testamentary freedom. Neither of these measures went further.

The reach of family provision legislation in the United Kingdom was considered by the Law Commission in the 1970s.[30] As noted in Tyler’s Family Provision, the Law Commission accepted Schaefer v Schuhmann as representing the law, but ‘sought to mitigate some of the worst abuses to which the decision potentially gave rise’.[31] The Commission opted for a power to review any contract to make a will if it was made with an intention to defeat a family provision application. Further, a contract for ‘no valuable consideration’ was rebuttably presumed to be made with an intention to defeat a family provision application.[32]

In Australia, the question of significantly extending the reach of the legislation with respect to property had to wait until the amending legislation of the Family Provision Act 1982 (NSW) and the inclusion of ‘notional estate’ provisions. New South Wales is still the only jurisdiction in Australia to include such wide-ranging provisions.[33] Between the 1930s and this legislation there was the Dillon decision and then Schaefer v Schuhmann. The former, in many respects, was regarded as an aberration; the latter restored orthodoxy.

The central problem that was at the heart of the issue in Dillon and Schaefer and informs, for example, the juxtaposed viewpoints expressed in discussion about proposed amendments to the legislation, was the place of family provision legislation in the context of inheritance. What was the policy of such legislation? More particularly, what ideas of ‘family property’ should, or should not, be embodied in the law, and how? Running through such questions is also the preliminary consideration of exactly what family provision legislation was meant to be — what was its purpose — and, if this is out of step with present expectations, how should it be altered to achieve that. Not all of this could be managed or resolved through the courts; it needed legislation as well.

The problem, at its simplest, is separating out what family provision is from what it should be — and allocating responsibility for the ‘is’ and the ‘should’ bits of this problem. In Schaefer v Schuhmann, Lord Cross of Chelsea for the Judicial Committee captured this in the following remarks with respect to contracts to leave property by will:

The question whether contracts made by a testator not with a view to excluding the jurisdiction of the court under the Act but in the normal course of arranging his affairs in his lifetime should be liable to be wholly or partially set aside by the court under legislation of this character is a question of social policy upon which different people may reasonably take different views.... If and so far as it is thought desirable that the courts of any country should have power to interfere with testamentary dispositions made in pursuance of bona fide contracts to make them, it is, their Lordships think, better that such a power should be given by legislation deliberately framed with that end in view rather than by the placing of a construction on legislation couched in the form of that under consideration in this case which results in such astonishing anomalies, as flow from the decision in Dillon v Public Trustee of New Zealand.[34]

In its restoration of the dividing line between the inter vivos effect of contracts that concern wills and the property available to meet a family provision order, the decision in Schaefer underlined the need for legislative solutions. Finding a statutory anti-avoidance strategy, therefore, was one of the principal goals in the work of the New South Wales Law Reform Commission in the 1970s that led to the Family Provision Act 1982, and, in particular, the provisions in that Act concerning ‘notional estate’. Under these provisions the Court may designate property as notional estate where it is subject to a range of ‘prescribed transactions’.[35] In formulating these provisions, the Commission considered comparative examples of ‘claw-back’ provisions, such as those in the Inheritance (Provision for Family and Dependants) Act 1975 (UK), the ‘augmented estate’ provisions of the Uniform Probate Code (US), the ‘forced share’ provisions in some US jurisdictions, which may be elected against the will, as well as the provisions in relation to matrimonial assets in the Family Law Act 1975 (Cth).[36]

One type of transaction caught by the notional estate provisions is a contract that provides for a disposition out of the deceased’s estate. The key issue in such situations is the question of consideration. Where the transaction involves a contract and ‘valuable consideration, although not full valuable consideration, in money or money’s worth’ is given, the transaction is ‘deemed to be entered into and to take effect at the time the contract is entered into’.[37] So, if a contract is considered as being of ‘full valuable consideration’ then the relevant date is the date of the contract. Where this occurred more than three years before the death of the relevant person then the property affected by the contract is not subject to an order under the Act. If the transaction fell within this period, then additional questions must be considered,[38] such as intention to limit provision for eligible applicants.[39]

Some leading commentators at the time the notional estate provisions were being proposed were strongly opposed to them. Professor Roy Woodman of the Faculty of Law, University of Sydney, was approached specifically for comment by the Attorney-General.[40] He singled out freedom of contract as being eroded by the notional estate proposals. He referred to Schaefer v Schuhmann, and stated that ‘there is no reason whatever to upset a contract validly entered into by the deceased in his lifetime’.[41] The work on the Act was being managed in the Law Reform Commission by Denis Gressier.[42] He provided a written response to the Attorney with respect to Professor Woodman’s comments.[43] He found Woodman’s view reflective of ‘a somewhat emotional commitment to individualistic rights of disposition, without any underlying analysis of objectives’:

Again, it begs the question of how to achieve fairness in the operation of an agreed (given we have had T.F.M. legislation since 1916) legal rule that some interference with people’s discretionary rights is socially and morally justifiable.[44]

The point, as he saw it, was this: ‘[i]t surely depends on what social objectives one is trying to achieve’.[45] What the juxtaposition of Woodman’s comments and Gressier’s response captures is precisely the tension that surrounds the subject, and the fundamental question about the role of family provision legislation.

At the time of the debate about reforming the legislation in New South Wales in the 1970s it was clear to those working with it that the old legislation reflected too much of the individual and not enough of the social, in terms of objectives, hence the need to reform it by amending legislation. The tension was to be resolved towards the social by extending the definition of eligible applicants and by extending the property that could be affected by an order under the Act.

What about the jurisdictions without notional estate provisions? In the absence of such provisions, the issues that could arise were whether there was any room in the doctrine stated in Schaefer to intrude upon or overturn a contract that had an effect on the estate of a deceased person in the family provision context. A further issue was whether Schaefer did, in fact, get it right. As to the first issue, in the passage in the speech of Lord Cross cited above,[46] there are dicta that leave open the possibility of interfering with a contract where, for example, it was made not as a bona fide exercise ‘in the normal course of affairs’, but rather ‘with a view to excluding the jurisdiction of the court’. His Lordship however made it clear that he considered such matters the province of ‘legislation deliberately framed’ rather than straining the construction of the legislation. So he recognised the problem, but deferred it to the legislature, rather than the courts.

In Barns v Barns (2003) 196 ALR 65 the High Court decided that it did not need legislative amendment to intrude upon a contract to make a will in a particular way through the vehicle of family provision legislation. It held that it could do so as a matter of construction of the legislation. The decision considered the South Australian legislation in which there were no provisions such as those in New South Wales. It faced the validity, or not, of the reasoning and the decision in Schaefer. And it turned the tables on that decision in holding that the property the subject of a contract to leave property by will (in this case expressed in a mutual wills agreement) was subject to family provision legislation. In doing so, Barns v Barns has challenged us to consider a range of family provision questions further: in particular, what is family provision all about — if questions of construction and public policy are framed by purposive interpretations, then this is a most fundamental issue. This, ultimately, is the subject of this article: identifying the tensions and embracing them as necessary for a proper understanding of the landscape for any amendment to the law.

3. Barns v Barns (2003) 196 ALR 65
A. The facts

Lyle Barns died in August 1998. He was survived by his wife Alice and two children: their son Malcolm and their adopted daughter Kathryn and her two children. Lyle and Alice were farmers. By his will dated 2 May 1996, Lyle appointed his son Malcolm executor and left the whole of his estate to Alice, making no provision for either of their children. The same day that he executed the will, Lyle, Alice and Malcolm also executed a deed.[47] This referred to an agreement between them whereby Lyle would make the will he did and that Alice would make her will in an agreed form (both of which were attached as schedules to the deed). Alice’s will was to similar effect — leaving her whole estate to her husband if he survived her — with the addition of a substitutional gift to Malcolm. The deed also stated that the wills would not be changed unless the other parties consented in writing.

The wills were mutual wills: they were made pursuant to a contract as to the provisions each would make on their death and that the wills would not be revoked.[48] The deed recited that they would act to ensure that property owned at their death would devolve in accordance with the agreed wills: Malcolm had worked on the family farm his whole working life. Kathryn had been married and divorced and bankrupted after an unsuccessful business venture with her husband. At some stage her parents made some financial provision for her. In their wills they wanted to ensure that the farm went to Malcolm and to prevent an attack on their estates being made by Kathryn. Lyle agreed that all property owned by him at his death would devolve in accordance with the agreed will; Alice agreed similarly with respect to all property owned by her at her death.

Malcolm obtained a grant of probate of the will of his father in January 1999. The estate had a net value at this time of $A1.8 million. Kathryn applied in March for provision out of the estate of her father under the Inheritance (Family Provision) Act 1972 (SA).[49] She also sought a declaration that the deed was void and of no effect against her application. The Supreme Court of South Australia dismissed Kathryn’s claim.[50]

The issues concerned both the question of construction of the legislation: what amounted to ‘the estate’ of a deceased person available to meet an order for family provision; and the effect of mutual wills in the context of family provision legislation. The first question was whether the ‘estate’ as a matter of statutory interpretation included property that was affected by a contract, including a mutual wills contract. If the property were regarded as being the subject of a legally effective disposition or, for example, caught by a constructive trust, it would not form part of the estate. So, did (or should) ‘estate’ in a family provision context mean something else? The second question was consequential upon the first: if the ‘estate’ did not include property affected by a contract, could such a contract be avoided on the basis of public policy — as a doctrine operating independently of the statute itself and as a matter of general overriding doctrine?[51] A third question was the width of the exception suggested by Lord Cross in Schaefer, with respect to ‘bona fide’ contracts.[52]

B. The Majority Judgment
(i) The Construction of ‘Estate’

It was held by the majority of the High Court[53] that the definition of ‘estate’ in the South Australian legislation included the property that was affected by the mutual wills contract. It did so as a matter of construction. Gleeson CJ, with whom the other majority judges agreed, summarised this as follows:

Ultimately, it is the meaning and effect of the Act that must determine the outcome. Whether the question is approached on a purely textual basis, or by reference to a purposive construction, the result appears to me to be the same. ... [T]here is no justification for a conclusion that the deceased left no estate out of which provision could be made for the appellant if a court saw fit.[54]

The reasons for this conclusion were the nature of the contract itself; and/or because of the meaning of ‘estate’.

(a) Nature of the Contract

Gleeson CJ considered that the contract was performed through the making of the will.[55] Any rights gained through the will made in pursuance of the deed were such ‘that they were always liable to be affected by the potential operation of the Act’.[56] On this analysis, the promise was to make a will in a particular form, not to remove the property from the operation of the Act altogether:

The effect of the legislation could have been avoided by a disposition inter vivos so that the deceased died with no estate; that is inherent in the scheme of the legislation. But the effect of the legislative restriction on freedom of testamentary disposition cannot be avoided by a promise to make a certain disposition.[57]

This was a particular construction of the nature of the contract in question. In this respect the judgment echoed that of Viscount Simon in Dillon’s case: that the substance of the contract was to make the will, and no more,[58] so that the promisee of the contract took as beneficiary under the will.

(b) Meaning of ‘Estate’

‘The manifest purpose of the Act’, according to the Chief Justice in Barns v Barns,[59] was ‘the making of provision for the maintenance of members of a family who are found to be in need of such maintenance when the family tie has been broken by death’.[60] Hence:

[a] construction of the Act that permits a testator to nullify its operation by agreeing in advance to dispose of his or her estate in a certain fashion tends to defeat the purpose of the legislation. Such a construction is not required by the language of the Act.[61]

Gummow and Hayne JJ also referred to the policy of the legislation as affecting its construction: the legislation was to be considered remedial in character and was therefore to be construed so as ‘to give the most complete remedy which its phraseology permitted’;[62] and the court should not be alert in placing a restricted construction upon the terms of such a law. And so,

[n]othing in law or in the policy of the Inheritance Act appears in support of a reading down of s 7(1) thereof to deny the appellant’s claim on the basis, contrary to the fact, that there is no subject matter of the deceased’s estate. To read down in this way the scope of the estate would be to travel along a path of reasoning in the opposite direction to that to which this Court pointed 70 years ago in Holmes [v Permanent Trustee Company of NSW [1932] HCA 1; (1932) 47 CLR 113]. It would facilitate the stultification of the object of the Inheritance Act by a simple expedient whereby testators covenanted not to revoke a particular will and died having observed that negative covenant.[63]

There was therefore no ground to read down the ordinary meaning of the phrase ‘the estate of the deceased’.

Kirby J echoed this approach. He stated that ‘the starting point for resolving the respective rights and obligations of the parties in the present appeals is an ascertainment of the true operation of the Act’:

Private contractual arrangements, otherwise valid and binding between the parties and their successors, must, once valid legislation impinges on the conduct of parties, be understood and applied subject to the operation of that legislation, construed so as to achieve its purposes as expressed in the chosen language.[64]

In applying this approach to ‘the proper construction of the law’, Kirby J agreed with Gleeson CJ that the rights obtained by the widow ‘were always liable to be affected by the potential operation of the Act’:

The mutual promises of the deceased and the second respondent to make a specified testamentary disposition, however otherwise enforceable according to the unwritten law, were subject to the potential impact of the restriction on testamentary disposition for which the Act provided. Only this construction gives effect to the purpose of the Act according to its terms.[65]

So, the Court could ‘reach’ the property the subject of the contract even without statutory changes like those in New South Wales in the case of contracts to leave property by will. While Mrs Barns (as the survivor) would be restrained from departing from her promise, which would attract equitable intervention as in Birmingham v Renfrew,[66] the ‘estate’ of Mr Barns (as this was interpreted in this decision) was liable to a family provision application. This was all based upon a conclusion or assumption as to the purpose or policy of the legislation, to which I will return later.

(ii)Public Policy

A separate argument by Kathryn, in addition to the width of the meaning of ‘estate’ in the legislation, was that the deed was void as being contrary to public policy. In the High Court, as the majority had held in Kathryn’s favour on the first issue, namely that the Deed did not remove the assets affected from the estate, it was unnecessary to consider separately the public policy argument. Several judges commented in dicta nonetheless. Gleeson CJ referred to ‘the general principle of public policy’ considered in Lieberman v Morris.[67] In this case, the High Court held that a covenant by a potential claimant (a widow, as she would be at the relevant time) not to make a claim under family provision legislation was ineffective. It was considered that such a covenant could not deprive a court of the discretionary jurisdiction conferred upon it under the legislation. Gleeson CJ considered that the ‘legislative purpose’ did not extend beyond dealing with a deceased’s estate. Having found that the property the subject of the contract was part of the estate, there was no need to go further:

A construction of the Act that permits a testator to nullify its operation by agreeing in advance to dispose of his or her estate in a certain fashion tends to defeat the purpose of the legislation. Such a construction is not required by the language of the Act.[68]
(iii) The Exception in Schaefer?

A subsidiary argument was based upon a qualification in the majority advice in Schaefer v Schuhmann by Lord Cross, in which his Lordship was referring to the effect of ‘bona fide contracts’ to make wills in a particular way. Given that the conclusion of the Privy Council in Schaefer was that property affected by a contract that bound the testator to a particular scheme of disposition could not be caught by the legislation, the only way out of the scheme of that decision was to hang it upon the hint of an exception mooted by Lord Cross,[69] that where the transaction was not in some way ‘bona fide’ or in the ‘normal course of arranging his [or her] affairs’ there may be a ground for a challenge. At first instance Burley J agreed, holding that the deed was a contract made ‘with a view to excluding the jurisdiction of the court under the Act’[70] of the kind referred to in Schaefer by Lord Cross. The Full Court of the Supreme Court of South Australia, however, held that it needed legislative change to achieve the claw-back of property affected by contracts of the kind in question.[71]

In considering the possible exception suggested by Lord Cross, Gleeson CJ commented in Barns that ‘the meaning of the expression “bona fide” in this context is a little obscure’.[72] He remarked that a person could embark in good faith as well as bad, to enter a binding contract to make a certain form of testamentary disposition — and the disposition itself was not necessarily an indicator of bad faith.[73] He could see good faith reasons for the kinds of transaction involved in the instant case, even if one of the reasons was precisely to make it impossible for an applicant to claim under family provision legislation.

C. The Dissent

Callinan J considered that to upset the agreement was a matter for legislative intervention because it involved overturning ‘longstanding understandings with respect to the effect of mutual wills and their invulnerability to testator’s family maintenance legislation’.[74] This was a judgment that reflected strongly the prior orthodoxy as represented, in particular, by Schaefer v Schuhmann.

While Callinan J recognised that ‘considerations of social and legal policy are involved’ in the particular litigation,[75] ‘[p]arties should be held to their contracts’:[76]

The courts should be concerned to enforce lawful contracts. There is no reason why mutual wills should be singled out as being unacceptably subversive of legislation for the protection of a deceased’s family whilst gifts and other dispositions inter vivos should not. A person knowingly accepting a benefit with a burden attaching to it should ordinarily bear that burden, even absent an express assumption of any obligation. There should not be any unnecessary intrusions upon the freedom of disposition of property by testators.[77]

It was not that Callinan J considered that inter vivos contracts were entirely immune from interference in the interests of family members under family provision legislation, but rather that should this be the intention of the legislature it needed to be expressly stated.[78]

4. Aberration or Orthodoxy?

On one level, the decision in Barns v Barns gives a clear interpretation of the ‘estate’ covered by family provision legislation in the future — at least in those jurisdictions without notional estate. Moreover, as a decision of the High Court it creates a new orthodoxy, that the ‘estate’ of a deceased person includes, for the purposes of legislation like the Inheritance (Family Provision) Act 1972 (SA), property that is the subject of a contract to leave it by will in a particular manner. For those who have made mutual wills upon the understanding of the law prior to the decision, it will require a revision of estate plans. As Charles Rowland noted[79] mutual wills have been made on the previous understanding of the law since the decision in Schaefer v Schuhmann in 1972. Often such arrangements have been made with the purpose of avoiding family provision in the sense that it might derail a carefully planned strategy for succession to property in a family context. Such arrangements will need to be revisited and the clients advised accordingly, if the family estate plans are to be effective as desired.

In New South Wales, the position is somewhat different. The introduction of the notional estate provisions brought to the forefront the distinction of ‘estate versus notional estate’ that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that ‘estate’ and ‘notional estate’ were different. Things subject to contracts (like mutual wills) were not within the definition of ‘estate’. To bring such property within the legislation required now the application of the complex procedures and definitions of ‘notional estate’. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act.

Firstly, the transaction needs to be identified as a ‘prescribed transaction’.[80] This involves an act or omission as a result of which property ‘becomes held by another person’ or property ‘becomes subject to a trust’;[81] and the absence of ‘full valuable consideration in money or money’s worth’ for the relevant act or omission.[82] Secondly, if the transaction involves a contract ‘providing for a disposition of property out of the person’s estate’, which would include a contract of the kind under consideration, then the transaction is deemed to be a transaction involving a relevant act or omission.[83] As for the requirement of consideration, it is further provided that where a prescribed transaction involves any kind of contract, and valuable consideration, although not full valuable consideration, in money or money’s worth is given for becoming a party to the contract, the transaction shall, for the purposes of this Act, be deemed to be entered into and to take effect at the time the contract is entered into.[84] In the context of contracts to leave property by will, if there is considered to be no valuable consideration in money or money’s worth for the contract, then the transaction is deemed to be entered into immediately before, and to take effect on, the death of the relevant person.[85]

Once the date is determined for the coming into effect of the contract, other provisions must be considered. There is a sliding scale of additional considerations depending on this dating. Where the transaction is deemed to take effect on death, the court may proceed to consider whether to designate the property or not.[86] If, however, the transaction is dated at an earlier time, then other questions must be considered before the court may consider designating the property or not. If the transaction is deemed to take effect within three years before the death of the deceased, then the court must consider whether the transaction was entered into ‘with the intention, wholly or in part, of denying or limiting, wholly or in part, provision for the maintenance, education or advancement in life of that or any other eligible person out of the deceased person’s estate or otherwise’. Where the transaction took effect within the period of one year before death, the question is whether the transaction was entered into ‘at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of that or any other eligible person which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction’.[87]

For New South Wales, therefore, the legislation makes clear that a contract to make a will is not covered within a general construction of the term ‘estate’, but must be considered as part of the non-estate, ‘notional’ estate provisions.

With respect to other jurisdictions in Australia, Barns v Barns has suggested that ‘estate’ by itself may be pushed into what, in New South Wales, is now notional estate territory — at least where the relevant transaction involves a contract to leave property by will. If the property is still in the testator’s name, notwithstanding that it may be affected by a contract to leave it in a particular way, and notwithstanding any argument about trusts that may arise in result, the property is part of the ‘estate’ for family provision purposes in jurisdictions outside New South Wales. Hence the only area of argument in New South Wales is whether there is any room left for the public policy argument used in the alternative in Barns. Probably not, as issues of intention to evade the Act are captured in the various elements of the deeming provisions concerning notional estate.[88]

While Barns overturned what had been accepted as orthodoxy, clearly since Schaefer v Schuhmann, it was sympathetic with, for example, the High Court’s decision in Easterbrook v Young.[89] In this case, the court gave an expansive interpretation to the expression ‘final distribution’ of the estate for the purposes of considering whether an application for an extension of time to apply under the legislation should be permitted. It was expansive in the sense that it did not use normal trust principles, namely to hold that an estate had been ‘distributed’ once the personal representative had completed the administration of the estate and was now holding as trustee; but rather that the estate would only be finally ‘distributed’ when it left the hands of the personal representative in a physical sense, namely that there is no remaining title of any kind in the personal representative.[90]

Where a person is intent on arranging his or her property in a settled way, following Barns, the only way of achieving it — in those jurisdictions that do not have notional estate — is by way of outright disposition inter vivos. Even then there is the remnant of the public policy argument contained within Schaefer, that if the transaction were intended to evade the Act then it might be challengeable; as well as the application of public policy in Barns itself, which in turn had relied on another High Court decision in Lierberman v Morris.[91]

While Barns v Barns is authoritative with respect to the meaning of ‘estate’, the decision leaves some tantalising points for further consideration. One issue is the interface between probate and equity — a point of jurisdictional collision at times over the centuries. Another is whether ‘they got it right’ with respect to the purpose of the Act: what was the mischief at which family provision was aimed? What was its purpose? This helps to explain the particular shape of the legislation then and now: when it was introduced; and why certain issues keep arising in the cases that consider it. A third issue is what such a case prompts us to consider in relation to the purpose of family provision today.

(i) Interface between Probate and Equity

The probate and equity effects of a contract to leave property by will are entirely different. In mutual wills, while there is a contract that involves wills, to say that the contract is performed by the making of the will by Lyle, and his dying with the will unrevoked, is somewhat artificial. The whole point of mutual wills transactions is to tie the property. The will is only incidental to this. When the will itself is revoked (in breach of the contract), equity can give effect to the obligations, notwithstanding that, as a matter of probate law, the last will must be admitted to probate.[92] If the survivor changed his or her will, the obligations remained. This is the probate effect of the transaction. The equity effect is quite distinct. It was described in Birmingham v Renfrew, a case in which a married couple, Grace and Joseph, had made mutual wills, as follows: when Grace died without having revoked her will (ie, she had performed her part of the contract), Joseph, the survivor, was affected by a trust to give effect to their agreement. Dixon J described it is a ‘floating obligation, suspended, so to speak, during the lifetime of the survivor’ which then descended on the assets at the death of the survivor to ‘crystallize into a trust’.[93] As Dixon J remarked in Birmingham v Renfrew, ‘the doctrines of equity attach the obligation to the property’:

‘[t]he effect is that the survivor becomes a constructive trustee and the terms of the trust are those of the will which he undertook would be his last will’.[94]

The property in the estate of the first to die was affected by that trust: it was not unfettered from obligation.

A mutual wills agreement is about settling the property amongst the family members in an agreed way. The will is merely an element in achieving this: ‘the will operates as the performance of the contract, not as bounty’, commented Nicholls CJ in Re Richardson’s Estate in 1935.[95] It is about achieving a certainty with respect to family property that is not otherwise achievable through the law of separate property. To say that Lyle Barns had done what he had contracted to do (through making the will), the approach of Clark J in Re Richardson’s Estate,[96] and, according to Gleeson CJ in Barns, ‘the better argument’,[97] might, however, be said to miss the larger point of mutual wills transactions. They may indeed involve an element of avoidance of family provision claims, but why can’t they be characterised as (and perhaps more) ‘in the ordinary course’ of ordering property within a family.[98]

Gleeson CJ acknowledged the ‘anomaly’ that if the testator had broken his promise, there may have been a liability in damages to the other contracting party.[99] If the promise was to leave the whole estate, the measure of damages would have been the value of the estate. Should the contracting party be worse off simply because the testator, like Lyle, had performed his contract rather than if he had broken it?[100] The nature of the particular obligation, and therefore equity’s response to it, may nonetheless be affected by what the parties have agreed. As commented by Gummow and Hayne JJ in Barns, ‘[u]ndoubtedly the terms of the particular extra-testamentary obligation are vital to its legal character and operation’.[101] Either the contract could itself be construed as subject to the possibility of redistribution of the estate under family provision legislation, or the legislation itself, within its own terms, could be construed as including property the subject of the contract in the ‘estate’ available under it.

In Barns the decision was that, as the wills left the whole estate, and as the contract was to leave ‘the residuary estate’ to the survivor, it was only such estate as remained after the satisfaction of, inter alia, claims under family provision legislation. Even where one specified expressly to the contrary, it seems that ‘estate’ would be defined, post Barns, as including any property the subject of a contract to leave property by will, whether mutual or otherwise. ‘Ultimately’, said the Chief Justice, ‘it is the meaning and effect of the Act that must determine the outcome’. Which leads, then, to the question of ‘the meaning and effect’, or the purpose, of the Act.

(ii) The Purpose of the Legislation?

There are various statements as to ‘the purpose’ of the legislation. It is certainly ‘remedial’, but is it:

... to prevent family dependants being thrown on the world with inadequate provision, when the person on whom they were dependent dies possessed of sufficient estate to provide for or contribute towards their maintenance[?][102]

Is it ‘to assure to the family of a deceased person adequate provision out of [the deceased ‘s] estate’? Or is its purpose actually something other than this?

Family provision legislation is not, as its name suggests, family provision legislation. It was cast as family maintenance legislation within strict confines. And it was cast from the perspective of the testator. It did not impose a restriction upon testamentary freedom, except in a broad, minimally corrective sense. The original model for the legislation did restrict testamentary freedom, by proposing the reintroduction of the ‘fixed shares’ regime of pre-18th century England that applied with respect to personal property and that still applied in Scotland.[103] It was the brainchild of Sir Robert Stout, Premier and later Chief Justice of New Zealand.[104] Its purpose was ‘to prevent a husband from willing the whole of his property to persons other than his wife’.[105]

Stout introduced several bills that were designed to compel a man to leave a certain proportion of his estate to his widow and children. As a Scotsman, he was familiar with the civil law principle of fixed shares which applied in Scotland and he sought to introduce it into New Zealand. When Lord Simon in Schaefer v Schuhmann expressed his dissenting opinion, he was also speaking as a Scotsman, familiar with a natural intrusion, or limitation, upon testatamentary powers in favour of the wife and ‘bairns’. But Stout’s model did not succeed. It was only the non-directive, discretionary model, with limited powers of adjustment that succeeded.[106] And it has provided the template for all family provision legislation since.

The discretionary form of the successful Testator’s Family Maintenance Act was deliberately cast not as an invasion upon testamentary freedom. As the mover of the first of the discretionary forms of bills, Robert McNab, stated in his second reading speech, he did not propose ‘to take away from any person any right of disposal of any part of his property’, rather he ‘only sought to provide for the maintenance of the wife and family’.[107] They were no longer ‘Limitation to the Power of Disposition by Will’ Bills, but ‘Testator’s Family Maintenance’ Bills that led to the passage of the Testator’s Family Maintenance Act 1900.

Family provision legislation conceptually was only a modest qualification on testamentary freedom.[108] It was meant to complement it, not to replace it. This limited approach, cast from the perspective of the particular testator, was seen in the debates that accompanied the introduction of the legislation in its earliest form;[109] in the development and continuing relevance of the ‘moral duty’ approach to the assessment of claims;[110] in decisions that mapped out, for example, the ‘range of foresight’ expected in assessing claims;[111] the casting of provisions in terms of needs for maintenance; and the insistence on not re-writing the will.[112]

So when Lord Simon gave voice to the same philosophical concerns, embodied in Stout’s endeavours, in his dissenting opinion in Schaefer v Schuhmann, he was speaking about what the law should be, rather than what family provision legislation was.[113] And, in doing so, he misconstrued the ‘mischief’ at which the statute was aimed — as expressed in Anglo-Australian (and New Zealand) law.

In a situation like Barns v Barns, the testator, his wife and son, had carefully crafted a ‘family property’ solution for their family. Testamentary freedom, as it found expression particularly in the 18th and 19th centuries in England, was justified on the basis of the powers of discrimination amongst family members, that it was ‘an instrument of authority, confided to individuals, for the encouragement of virtue and the repression of vice in the bosom of their families’.[114] The power of testation was seen both as an aspect of individual fulfilment and anchored in ideas of private property, and an instrument of social control. It was seen both as an incentive to industry and the accumulation of wealth,[115] and as preferable to a system of fixed inheritance rights, which were represented as a disincentive to heirs to work and would therefore reduce the total wealth of a nation.[116] So the contractual arrangement in Barns can be seen, in many respects, as the careful exercise of testamentary powers that was the assumed premise (and justification) for the very freedom of testation itself.

Testamentary freedom operated within a family context, as serving a particular function, but it was to be exercised within a framework of moral responsibility. In Banks v Goodfellow in 1870,[117] Cockburn CJ summarised the intellectual tradition contained in this doctrine of ‘testamentary freedom’ as follows:

The law of every civilised people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass. Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given... The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of the general law  ...[118]

That ‘moral responsibility of no ordinary importance’ inherent in the power of testation was to provide for the maintenance, education and advancement in life of children: ‘to enable them to start with a fair chance of achieving by their own exertions a successful life’;[119] to ‘encourage virtue’ and to ‘repress vice’ in the testator's family.[120] Freedom, in this context with respect to the power to control postmortem the distribution of property through wills, was not therefore to exist in the abstract. Philosophically the freedom was located in a framework of moral responsibility, duty and obligation. Viewed in this light, one might argue that Lyle Barns did indeed behave as the (just and wise husband and father)[121] that both testamentary freedom and testator’s family maintenance legislation expected of him.

Testator’s family maintenance or family provision legislation reflected the same values. In this way the moral duty approach that defined the jurisdiction can be seen as a natural continuity with the ideas and rationale of property developed in England over several centuries. The court was placed in the testator’s position, but in a more objective role than the individual testator. The major difference between the function of testamentary freedom and the court’s discretion under family provision legislation was that the court was limited in what it could do: it could only make an order on the basis of what was necessary for ‘proper maintenance, education or advancement in life’ (or similar formulae); it was not an ‘at large’ jurisdiction. The remedial powers were thus framed within a model of dependence on the testator, not simply redoing the testamentary equation. They were also framed on the basis of preserving testamentary freedom, so that applicants who desired provision had to come to the court to establish their case: there was no introduction (or re-introduction) of a fixed shares regime. Theirs was the right to apply; not a right to provision. This was acknowledged by the Privy Council in Dillon v Public Trustee of New Zealand,[122] in saying that:

[t]heir Lordships cannot regard it as a correct exposition of [the Family Protection Act 1908 (NZ)] to say that it imposes on a husband the obligation to make adequate testamentary provision for the maintenance and support of his wife. The statute does not impose any duty to frame a will in a particular way, and the testator did not fail to observe any statutory obligation by making his will as he did. What the statute does is to confer on the court a discretionary jurisdiction to override what would otherwise be the operation of a will by ordering that additional provision should be made for certain relations of the testator’s estate, notwithstanding the provisions which the will actually contains. If the testator does not make adequate provision in his will for his wife, husband or children, he does not thereby offend against any legal duty imposed by the statute. His will-making power remains unrestricted, but the statute in such a case authorises the court to interpose and carve out of his estate what amounts to adequate provision for these relations if they are not sufficiently provided for.[123]

That there are divergent views of the legislation and the role it can play — even its purpose and policy — is a reflection of the elasticity within it.

The purpose of the legislation as seen by the members of the majority in Barns is, therefore, both aberrant and orthodox. It can be seen as ‘aberrant’ with respect to the purpose of those who drove the introduction of the legislation — or most of them. But it is also ‘orthodox’ in the sense that many have seen in the legislation the potential for a much bigger role. If, indeed, it is thought appropriate for legislation to have such a wide, and more invasive, role in the testamentary domain, then this should guide legislative reform.

(iii) The Purpose of Family Provision Legislation Today

While family provision legislation began as a modest intrusion upon testamentary freedom, it has been subject to great pressure for expansion, both through the interpretation of the legislation, particularly in relation to adult children, and through specific legislative amendment. Indeed, Barns v Barns itself may be considered an example of this. The fact of expansion of operation is not in itself problematic, provided that there is (ideally) a consistent logic for doing so, or at least recognising what the perhaps divergent logical pathways mean in terms of the development from the initial jurisprudential logic of the jurisdiction. This is where facing squarely the notion of the role and purpose of family provision legislation is of fundamental importance to any change. To take one example, the categories of eligible applicant have been extended significantly in all jurisdictions, but without a consistent logic being expressed.

My own work for the Victorian Law Reform Advisory Council in 1994 traversed a range of possibilities, predicated upon the differing roles that could be seen as appropriate for the legislation, and argued for a consistency of approach.[124] The questions I posed in my Report for the Victorian Law Reform Advisory Council captured the range of questions as follows:

If moral obligation is the keystone, to what extent does the legislation fulfil it? Is it true to the jurisprudential framework or not? If not, where is it lacking? Should the gaps, if any, be filled? Has it gone too far? Why should adults have claims on their parents? Such questions will affect the drafting of conditions of eligibility; it will affect the criteria for the award of orders under the Act. For example, should eligibility be defined in terms of ‘moral obligation’ rather than by lists or by categories which are not necessarily coincident with moral obligation, such as dependency (although this may assume moral obligation at least to the extent that relationships of dependency may give rise to it)? This would arguably be truer to the philosophy of testamentary freedom but would hugely increase discretion and for that reason may be unworkable. Should the court have jurisdiction not only to assess a breach of moral duty but also fully to rectify it? Should questions of conduct take over the litigation — where moral duty becomes the mechanism of the jurisdiction surely this must be the case. But then what is the value of testamentary freedom? Would this go too far into the testator's armchair?[125]

Once the underlying logic of the role that such legislation should play was identified, then reform could be undertaken on a consistent basis and a template generated for justifying future amendments. For example, if moral obligation were seen as the core principle, then a wider role for family provision could be crafted. If the idea of maintaining dependants or relieving needs was identified as the relevant function, however, then a narrower role for the legislation could be found. The Victorian legislature opted for moral obligation as the guiding principle: it rejected a list based approach and went for the one category approach: ‘those for whom the deceased had responsibility to make provision’. The recommendations of the National Committee for Uniform Succession Laws in Australia includes this concept in addition to a limited list, including spouse and non-adult children.[126]

Family provision legislation today is in a muddle. It jumbles up its original logic and dilutes the logic of testamentary freedom. Succession law as a whole, moreover, is straining under conflicting pressures. On the one hand, testamentary freedom is being extended through the introduction of ‘dispensing powers’ in all jurisdictions in Australia to overcome deficiencies in compliance with wills formalities;[127] and by powers of rectification of wills to get closer to what the testator really wants to happen with his or her property on death. This represents in succession law a jumble of individualism and family property – with neither articulated fully and well. The individual is given precedence through an expansion of the operation of testamentary instruments into what was formerly an impenetrable domain of informal and highly technical invalidity. Further, if the testator’s intention is not wonderfully clear there is an increasing role for powers of rectification to correct, or fathom, the testator’s real intention.[128]

And yet, on the other side of the scales of succession law, sits family provision legislation; and this is increasingly expanding. Its role is being pushed to recognise more claimants; to grab, or claw back, more property; to override a testator’s wish to limit provision for, or exclude, particular family members in favour of others, or for other reasons — all of which represents an overriding of the individual testator’s judgment with respect to the property of his or her particular family. There is a real clash between ‘individual’ and ‘family’ in the directions of succession law: it is expressed philosophically through conflicting narratives on the purpose of, for instance, family provision legislation; it is expressed practically through legislation which expands powers to intrude upon testamentary territory for entirely opposite reasons.

In the family provision domain the National Committee for Uniform Succession Laws proposed, in its model Family Provision Bill 2004,[129] that the court should be given powers to reach property that is not included in, or has been distributed from, the estate of a deceased person. It included the orthodox conceptualisation of property in and out of an estate as embodied in Schaefer v Schuhmann, in that it expressly provided for contracts disposing of property out of the relevant person’s estate.[130]

Barns v Barns demonstrates that the tension contained in the legislation continues. It creates a new orthodoxy in terms of the definition of ‘estate’ with significant ramifications for possibly many well-laid estate plans since Schaefer v Schuhmann. It is a timely reminder of the need to push ahead for reform of family provision legislation — and on an agreed national basis as urged by the Standing Committee of Attorneys-General and put into effect through the Uniform Succession Project.[131] It will also require a revision of the property provisions of the Bill prepared as part of that project. To date this project has led to recommendations for following the concept of an expanded reach of the legislation with respect to property as included in the New South Wales provisions. But, in Barns v Barns, the ground rules for the interpretation of ‘estate’ in the legislation (apart from New South Wales) has changed.

And so, post Barns v Barns in Australia, and more generally, it is timely for law reformers across common law jurisdictions to confront the place of family provision in its wider context: namely separate property or family property; and its relationship to provisions on dissolution of marriage. Only then will the aberrations and the orthodoxies concerning contracts to leave property by will and family provision be unjumbled.

[*] Rosalind Croucher, BA (Hons), LLB, PhD, AMusA, FRSA, FACLM (Hon), Professor and Dean of Law, Macquarie University. The analysis in this article draws upon work in my doctoral thesis at the University of New South Wales (1994) and my report to the Victorian Attorney–General’s Law Reform Advisory Council in 1994, published as Family Provision: Expert Report 1 (Melbourne 1997), also published on their website, Sept 1998. (This report and all other work by me prior to March 2004 were written under the name of ‘Atherton’). I am grateful for the comments on an earlier draft made by Peter Radan and for the comments of the anonymous referees to this article.

[1] [1941] AC 294 (hereafter Dillon).

[2] [1972] AC 572 (hereafter Schaefer v Schuhmann).

[3] (2003) 196 ALR 65 (hereafter Barns).

[4] As, for example, in Synge v Synge [1894] UKLawRpKQB 10; [1894] 1 QB 466; Re Edwards [1958] Ch 168.

[5] As, for example, in Palmer v Bank of New South Wales [1973] 2 NSWLR 244.

[6] For example, Birmingham v Renfrew [1937] HCA 52; [1937] 57 CLR 666 (hereafter Birmingham v Renfrew); Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11; Osborne v Osborne [2001] VSCA 228.

[7] For a full analysis of the introduction of this legislation see Rosalind Atherton, ‘New Zealand’s Testator’s Family Maintenance Act of 1900 — the Stouts, the Women’s Movement and Political Compromise’ [1990] OtaLawRw 2; (1990) 7 Otago LR 202.

[8] See Rosalind Atherton, Family Provision: Expert Report 1 (Melbourne 1997) (hereafter Atherton, Family Provision); and Rosalind Atherton, ‘The Concept of Moral Duty in the Law of Family Provision — A Gloss or Critical Understanding?’ (1999) 5 Australian Journal of Legal History 5.

[9] The legislation uses slightly differing wording: see Atherton, Family Provision, id at 130. Despite the differences in wording, uniformity of interpretation has been encouraged: Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at 507 (Dixon CJ).

[10] For general descriptions of the Australian family provision legislation, see John De Groot & Bruce Nickel, Family Provision in Australia & New Zealand (1993); Anthony Dickey, Family Provision after Death (1992) and Rosalind Atherton & Prue Vines, Succession – Families, Property and Death (2nd ed, 2003) (hereafter Atherton & Vines) at ch 15; and for the UK provisions, see Richard Oughton & Edward Griffin (eds), Tyler’s Family Provision (3rd ed, 1997) (hereafter Tyler’s Family Provision).

[11] Tyler’s Family Provision, above n10 at 313. This controversy is reflected for example in the divergent views contained in law reform studies of the legislation over time on the issue of whether to extend the reach of the legislation into contracts entered into inter vivos. In 1978 the Queensland Law Reform Commission decided against recommending anti-avoidance provisions: Report on the Law Relation to Succession, Report No 22 (1978) at 29; in 1983 the Law Reform Commission of British Columbia in its Report on Statutory Succession Rights, Report No 70 (1983) at 95 recommended to similar effect. To the contrary were the recommendations included in the UK legislation in response to report of the Law Commission, Family Law – Second Report on Family Property: Family Provision on Death, Law Com No 61 (1974) and in the NSW legislation in the Family Provision Act 1982 in response to the deliberations of the NSW Law Reform Commission in the 1970s, in particular the Report on the Testator’s Family Maintenance and Guardianship of Infants Act, 1916, LRC 28 (1977).

[12] Barns, above n3 at 18.

[13] Id at 19.

[14] For a consideration of the civil law concepts of community property and forced heirship see, for example, the chapters on ‘Family Provision and Forced Heirship’ in Rosalind Atherton (ed), The International Academy of Estate and Trust Law, Selected Papers 1997–1999 (2000) at 647–752; and the chapters on ‘The Challenge of the “New Family” for Law’ in Rosalind Croucher (ed), Families and Estates – A Comparative Study (2005).

[15] Dillon, above n1 at 302–303 referring to the judgment of Myers CJ & Ostler J.

[16] Id at 302.

[17] Id at 303.

[18] Id at 303.

[19] Id at 303–304.

[20] Tyler’s Family Provision, above n10 at 314. The authors referred, in addition to the first edition of their own work at 26–27, to the work of DM Gordon in Canada: ‘Conflict between Limitations on Testamentary Power by Statute and Contract’ (1941) 19 Can Bar Rev 603 and (1942) 20 Can Bar Rev 72.

[21] See the analysis of the decision in Ian Hardingham, ‘Schaefer v Schuhmann: Promisee v Dependant’ (1971) 10 UWALR 115; W Anthony Lee, ‘Wills – Contract to Leave Property by Will – Jurisdiction to Make TFM Order Interfering with Benefit’ (1972) 46 ALJ 191; W Anthony Lee, ‘Contracts to Make Wills’ (1971) 87 LQR 358; W Anthony Lee, ‘Note’ (1972) 88 LQR 320; Ross Sundberg, ‘The Problem in Schaefer v Schuhmann – A Simple Answer?’ (1975) 49 ALJ 223.

[22] (1934) 29 Tas LR 149 (hereafter Richardson’s Estate).

[23] Id at 155 (Nicholls CJ).

[24] [1972] AC 572 at 592 (Cross LJ for the Judicial Committee).

[25] Schaefer v Schuhmann, above n2 at 596F (Simon LJ).

[26] The details of the particular Bills and the proposal for their introduction are found in the papers of the Department of the Attorney General and of Justice held in the State Archives of NSW, Special Bundles – Promulgation and Amendment of the Testator’s Family Maintenance and Guardianship of Infants Act 1916, AO 5/7782, Bundle 1.

[27] There are several examples of correspondence to this effect: ibid.

[28] F Eric McElhone to the Attorney General, 15 February 1933, Department of the Attorney General and of Justice, Special Bundles – Conveyancing, Trustee and Probate (Amendment) Bill 1938 (1921–1938).

[29] Opinion of the Registrar of Probates, Minute, Department of Attorney General and Justice, 26 May 1933, ibid.

[30] Law Commission (England and Wales), Family Law: Second Report on Family Property: Family Provision on Death Report No 61 (1974) at 22–42.

[31] Tyler’s Family Provision, above n10 at 315.

[32] For a consideration of the provisions, see id at 315–320.

[33] Queensland is the only other Australian jurisdiction that specifically includes inter vivos transactions, and then only donationes mortis causa, which are included as property for family provision purposes in Succession Act 1981 (Qld) s41(12). However the proposed uniform model bill includes notional estate provisions based on those in New South Wales: Queensland Law Reform Commission, National Committee for Uniform Succession Laws, Family Provision, Supplementary Report to the Standing Committee of Attorneys General Report No 58 (2004).

[34] Schaefer v Schuhmann, above n2 at 592.

[35] Family Provision Act 1982 (NSW), ss2229.

[36] New South Wales Law Reform Commission, Working Paper on the Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (1974) at pars 11.10–11.16.

[37] Family Provision Act 1982 (NSW) s22(6).

[38] Id at s23. See Rosalind Atherton, ‘Notional Estate and the Family Provision Act 1982: consideration of a prerequisite’ (1987) 25 Law Society Journal 37.

[39] Family Provision Act 1982 (NSW) s23(b).

[40] The Attorney–General’s letters to Professor Woodman, Hutley J & RP Meagher (whom he also approached) are in Special Bundle of Papers – ‘Family Provision’, 83/8585, held in the archives of the Attorney–General’s office.

[41] Woodman’s response is contained in the Special Bundle of Papers – ‘Family Provision’, id. Pages 2–3 of Woodman’s response deal with the notional estate provisions.

[42] Later appointed as a Master in Equity in the Supreme Court.

[43] Gressier’s response is set out in an Internal Memorandum dated 28 November 1978. The detailed narrative of the Commission’s work is set out in chapter 8 of my doctoral thesis: ‘The Family Provision Act – the New South Wales Law Reform Commission v. Parliamentary Counsel’ (UNSW 1994).

[44] Woodman’s response, above n41 at 7.

[45] Ibid.

[46] See text at n34 above.

[47] See judgment of Callinan J at 133. The deed is set out in Barns v Barns [2001] SASC 187.

[48] For a consideration of mutual wills see, for example, the following and other articles cited therein: JDB Mitchell, ‘Some Aspects of Mutual Wills’ (1951) 14 Mod LR 136; R Burgess, ‘A Fresh Look at Mutual Wills’ (1970) 34 The Conveyancer 230; L Sheridan, ‘The Floating Trust: Mutual Wills’ (1977) 15 Adel LR 211; Timothy Youdan, ‘The Mutual Wills Doctrine’ (1979) 29 University of Toronto Law Journal 390; Charles Rickett, ‘A Rare Case of Mutual Wills and its Implications’ [1982] AdelLawRw 10; (1982) 8 Adel LR 178; Charles Rickett, ‘Mutual Wills and the Law of Restitution’ (1989) 105 LQR 534; Charles Rickett, ‘Extending Equity’s Reach through the Mutual Wills Doctrine?’ (1991) 54 Mod LR 581; AHR Brierley, ‘Mutual Wills – Blackpool Illuminations’ (1995) 58 Mod LR 95; Ken Mackie, ‘Recent Developments in the Law Relating to Mutual Wills’ (1998) 5 Aust Property LJ 95.

[49] As a child of the deceased under s6(c) pursuant to the effect of s9(1) of the Adoption Act 1988 (SA).

[50] Barns v Barns [2001] SASC 303; (2001) 80 SASR 331.

[51] The merits of Kathryn’s claim for provision out of the estate were never considered in the South Australian proceedings as the decision of the court as to the effect of the mutual wills agreement headed this off: Barns v Barns [2001] SASC 303; (2001) 80 SASR 331.

[52] See text at n34 above.

[53] Gleeson CJ, Gummow, Hayne & Kirby JJ; Callinan J dissenting.

[54] Barns, above n3 at 32.

[55] Id at 32.

[56] Ibid.

[57] Id at 33.

[58] See above text at n16; Dillon, above n1 at 303.

[59] Barns, above n3 at 34.

[60] Jordan CJ in In re Jacob Morris (Deceased) [1943] NSWStRp 43; (1943) 43 SR (NSW) 352 in a passage adopted on appeal to the High Court – Lieberman v Morris (1944) 69 CLR 69 at 78 (Latham CJ).

[61] Barns, above n3 at 34.

[62] Id at 44.

[63] Id at 68.

[64] Id at 127.

[65] Id at 129.

[66] Birmingham v Renfrew, above n6.

[67] (1944) 69 CLR 69. Barns, above n3 at 34 (Gleeson CJ), citing (1944) 69 CLR 69 at 78 (Latham CJ adopting a passage of Jordan CJ in In re Jacob Morris (Deceased) [1943] NSWStRp 43; (1943) 43 SR (NSW) 352)).

[68] Barns, above n3 at 34. See also Gummow & Hayne JJ at 59 and 60.

[69] Schaefer v Schuhmann, above n2 at 592. See above text at n34.

[70] Barns, above n47 especially at 44.

[71] (2001) SASR 331 at 1 (Prior J), 125 (Lander J) & 130 (Wicks J).

[72] Barns, above n3 at 39.

[73] Ibid.

[74] Id at 132.

[75] Barns, above n3 at 140.

[76] Ibid.

[77] Ibid.

[78] Id, especially at 161, 171.

[79] Charles Rowland, Hutley’s Australian Wills Precedents (6th ed, 2004) at 33.9.

[80] Family Provision Act 1982 (NSW) s22(1).

[81] Id at s22(1)(a).

[82] Id at s22(1)(b).

[83] Id at s22(4)(f).

[84] Id at s22(6).

[85] Id at s22(5). If the contract specifies another event for the transferring of property, then that date is the relevant date.

[86] Id at s23(b)(iii) – subject to the matters set out in ss2628.

[87] Id at s23(b)(i)–(ii).

[88] Ibid.

[89] [1977] HCA 16; (1977) 136 CLR 308.

[90] The New South Wales legislation was subsequently amended specifically to reflect this: Family Provision Act 1982 s6(5). De Groot & Nickel argued that the Queensland provision, which uses ‘normal estate distribution principles’, is to be preferred: De Groot & Nickel, above n10 at 411.

[91] (1944) 69 CLR 69.

[92] Dufour v Pereira (1769) 1 Dick 419; [1769] EngR 63; 21 ER 332. See the fuller note of this case, which began the doctrine of mutual wills in English law: Francis Hargrave, Jurisconsult Exercitations (1811) vol 2, 100–108 at 104, 105.

[93] Birmingham v Renfrew, above n6 at 689. See Barns, above n3 at 85 (Gummow & Hayne JJ).

[94] Id at 683.

[95] Richardon’s Estate, above n22 at 155. This reasoning was that adopted by the Privy Council in Schaefer v Schuhmann, above n2.

[96] Id at 157–160.

[97] Barns, above n3 at 21.

[98] Cross LJ, above n24.

[99] Barns, above n3 at 21.

[100] Ibid.

[101] Id at 69. See Rickett (1991), above n48 with respect to the remedial application of equitable doctrine in this context.

[102] Schaefer v Schuhmann, above n2 at 596 (Simon LJ) cited in Barns v Barns at 2 (Gleeson CJ).

[103] See Atherton (1990), above n7. It was the Scottish model that was in the mind of its progenitor, Robert Stout.

[104] The details of this and the specific sequence of the Bills leading up to the 1900 Act are given fully in Atherton, ibid.

[105] ‘Sir Robert Stout before the Women’, newscutting with no source, in ‘The Election of 1893 – Newspaper Clippings’, vol 1, Alexander Turnbull Library, Wellington, New Zealand. Stout was campaigning in the 1893 general election. He was addressing a crowd of 700–800 women – women having just been granted the suffrage that same year – Electoral Act 1893. See Atherton, ibid.

[106] Ibid.

[107] 1900 New Zealand Parliamentary Debates, vol 111 at 504.

[108] See in particular my arguments in Atherton (1999), above n8.

[109] See Atherton (1990), above n7.

[110] See Atherton (1999), above n8.

[111] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, which held that the facts and circumstances to be considered in the evaluation of the claim of applicants were those facts at the date of the deceased’s death, taking into account those matters within the range of reasonable foresight of the deceased. Conceptually this reiterated the connection between testamentary freedom and testator’s family maintenance.

[112] See, for example, Pontifiial Society for the Propagation of the Faith v Scales (1961–62) [1962] HCA 29; 107 CLR 1 at 19 (Dixon CJ). This was based on both the importance of testamentary freedom and a complementary respect for privacy in family matters: see, for example, Plimmer v Plimmer (1906) 9 NZGLR 10 at 21 (Edwards J).

[113] Schaefer v Schuhmann, above n2 at 595.

[114] Jeremy Bentham, ‘Principles of the Civil Code’ in Works of Jeremy Bentham – Published under the Supervision of his Executor John Bowring (1843) at 337. See generally 296–364, ‘Of Wills’.

[115] Henry Sidgwick, ‘Inheritance’ in The Elements of Politics (1897); Josiah Wedgwood, The Economics of Inheritance (1939) at 200–201.

[116] Wedgwood, above n91 at 194; Harold J Laski, A Grammar of Politics (1925) at 528; Hugh Dalton, ‘Effects of the Non-fiscal Law’ in Some Aspects of the Inequality of Incomes in Modern Communities (1929) especially s4 at 301.

[117] (1870) 5 LR QB 549.

[118] Id at 563–565.

[119] John Stuart Mill, Principles of Political Economy (1848) at Bk II, ch 2, para 3.

[120] Bentham, above n114.

[121] Bosch v Perpetual Trustee Co Ltd [1938] AC 438 at 478–479 (Romer LJ), citing with approval the analysis in Re Allen [1921] NZGazLawRp 155; [1922] NZLR 218 at 220 (Salmond J); and Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 972–973 (Edwards J).

[122] [1941] AC 294.

[123] Id at 301.

[124] When there were proposals for law reform being considered with respect to family provision. It was presented in 1994 and later published in a series of ‘Expert Reports’ by the Council as Expert Report 1: Family Provision (1997). See generally Chapter 2 and the summary of recommendations in Chapter 6. The Expert Report was provided to the New Zealand Law Commission when undertaking its work in relation to the New Zealand Act.

[125] Family Provision, above n124 at 2.241. See also the summary recommendations in Chapter 6.

[126] Family Provision Bill 2004, above n33 at ss6–7, in the model family provision legislation included as Appendix 2 to Queensland Law Reform Commission, National Committee for Uniform Succession Laws, Family Provision – Supplementary Report to the Standing Committee of Attorneys General Report No 59 (2004).

[127] For a consideration of the varying provisions see Atherton & Vines, above n10 at 8.13ff.

[128] Wills Act 1968 (ACT) s12A(1); Wills, Probate and Administration Act 1898 (NSW) s29A; Wills Act 1936 (SA) s25AA; Wills Act 1992 (Tas), s47; Wills Act 1997 (Vic), s31; Wills Act 2000 (NT), s31; Succession Act 1981 (Qld), s31. For a consideration of the varying provisions see Atherton & Vines, above n10 at 10.13ff.

[129] Family Provision Bill 2004, above n33, included as Appendix 2 to Queensland Law Reform Commission, above n126.

[130] Id at clause 27(2) f).

[131] The Family Provision reports to date include: New South Wales Law Reform Commission, Issues Paper 11 and Queensland Law Reform Commission, Uniform Succession Laws – Family Provision Working Paper 47 (1996); Queensland Law Reform Commission, National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision, Miscellaneous Paper 28 (1997); Queensland Law Reform Commission, National Committee for Uniform Succession Laws, Family Provision – Supplementary Report to the Standing Committee of Attorneys General Report No 59 (2004).

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback