Testamentary Freedom vs Testamentary Obligation From Around The World

October, 2014

Under the Succession legislation in all Australian States you will see an attempt by those legislatures to balance the age old doctrine of testamentary freedom (the ability to give your property to who you choose) with the doctrine of moral obligation, (the requirement to provide for persons the community deems you owe it to).

The issue has been with us through the ages and around the globe. The latest episode this week is from Beijing where a man has lost his claim for a share of $324 million estate that included 72 paintings by some of China’s most renowned artists, including Qi Baishi and Xu Beihong.

The will filed by the widow with a Beijing court left her everything but her son claimed it was a forgery and demanded the estate be split up between the relatives.

Five other living children and the daughters of two others who had pre deceased the will maker lined up on various sides and in different coalitions of relatives in the court case echoing the family succession tensions of a high profile Australian mining family currently before the courts.

The Second Intermediate People’s Court in Beijing ruled on Monday that the will was the true intention of the deceased and that the widow should retain ownership of the assets.

Many commentators lamented the death of Chinese ideals of the virtue of respect for one’s parents and ancestors. However the case is perhaps just indicative of the universality of these tensions across all cultures, families and times. Certainly they are hardwired into our own s41 Succession Act 1981 (Qld) and its equivalents in all Australian State jurisdictions. Perhaps there is a Confucian equivalent of what Australian estate planning lawyers have known for some time. Where there is a will there is a relative.

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