FAMILY PROVISION AND INHERITANCE LAW IN THE ASIA PACIFIC REGION - A PAPER PRESENTED AT THE LAWASIA CONFERENCE PAPER MARK HANNA 9 Nov 2015

Family Provision – A Solution to Inequity in Inheritance?
Mark Hanna LAWASIA Annual Conference 2015
FAMILY PROVISION – A SOLUTION TO INEQUITY IN INHERITANCE IN ASIA/PACIFIC?
Over two thousand years ago, in the first century BCE, Publilius Syrus pithily observed:
Heredis fletus sub persona risus est. 1
Loosely translated, what he was saying was that the weeping of an heir is nothing more than
laughter under a mask2
.
Whilst we may regard this as a cynical view of a survivor’s grief, one explanation of Syrus’s
reflection is that the acquisition of property through inheritance was an important source of
individual wealth in ancient Rome3
just as it is today throughout the world.
Inheritance is important even in the developing world. As Elisa Scalise observed in her epic study
of Women’s Inheritance Rights in South Asia,
“Women generally acquire land rights through inheritance, if at all.” 4
Inheritance and succession law, like family law, are essentially about the reallocation of
property.
In this paper I will review the tension between testamentary freedom and equity in succession
law and how different member states resolve these issues. I will largely focus mainly on Australia
and Singapore, but also discuss the situation in Malaysia and Japan contrasting the different
approaches in our region and the possible future for family provision.
TESTAMENTARY FREEDOM
In 1873, the renowned Sir James Hannen described how testamentary freedom works5
:
By the law in England everyone is left free to choose the person upon whom
he will bestow his property after death entirely unfettered in the selection
he may think proper to make. He 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, and we must give effect to his will, however
much we may condemn the course he has pursued.6
Testamentary freedom is an ancient principle dating back more than 2000 years to Roman law.
But even in Rome, testamentary freedom had its limitations. Towards the end of 14 A.D. a law
1
Publilius Syrus Publilii Syri Sententiae H 18(R. A. H. Bickford-Smith ed., G. J. Clay and Sons 1895).
2
In academic writings today, the term “laughing heir” is used specifically to designate heirs that are so loosely linked to the testator
to suffer no sense of bereavement. Cf. David F. Cavers, Change in the American Family and the “Laughing Heir”,20 Iowa L. Rev. 203,
208 (1935) (introducing the term by reference to the German phrase “der lachende Erbe”); David V. DeRosa, Intestate Succession
and the Laughing Heir: Who Do We Want to Get the Last Laugh?,12 Quinnipiac Prob. L.J. 153, 157 (1997) (stating that it was Cavers
who brought the term into popular use in the U.S.
3
According to Eike G. Hosemann, LL.M. (Harvard), Hamburg in “Protecting Freedom of Testation: A Proposal for
Law Reform in the United States” Max Planck Private Law Research Paper No. 13/24, “Even absent concrete socio-economic data, it
seems that one can infer the importance of inherited wealth in ancient Rome from the fact that Roman elites were obsessed with
the making of wills.”
4
Elisa Scalise Women’s Inheritance Rights to Land and Property in South Asia: A Study of Afghanistan, Bangladesh, India, Nepal,
Pakistan, and Sri Lanka A Report by the Rural Development Institute (RDI) for the World Justice Project December 2009.
5
Sir James Hannen, later Lord Hannen, Judge in the Court of Probate and Divorce.
6
Boughton v Knight (1873) LR 3 P & D 64 Sir James Hannen P.

was adopted limiting a testator’s power of disposal to three quarters of his estate, the remaining
one quarter was to pass to the nearest blood relatives i.e. the children. At the same time a
remedy was introduced (Querela) whereby the deceased’s family members might attack the will
on grounds that exclusion from the will, or the amount given in the will, was unjust.7
Almost two thousand years later, Justice Cockburn agreed with the Romans. In the 1870 case of
Banks v Goodfellow he reminded testators:
“... 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....”8
The tension between testamentary freedom and a testator’s moral responsibility to be equitable
to one’s descendants was the basis for the introduction of family provision legislation.
Under family provision law, courts are empowered to make orders for provision out of the
estate of a deceased person for the proper maintenance, education, and advancement in life of
certain categories of claimant.
When family provision legislation first introduced in 1900 in New Zealand and then Australia, it
was to deal with issues such as men refusing to make testamentary provision for their wives and
children, following the abolition of ‘dower’- the legal right of a widow to inherit land from the
estate of her husband for the purpose of supporting herself after his death.
In the early twentieth century Canada, England and Ireland also adopted forms of legislated
family provision as did Singapore and Malaysia in the 1966 and 1971 respectively.
The commonality there is that these countries are all common law countries – in fact family
provision is largely a response adopted in common law countries to enforce rights of
inheritance.
But who has a right to inherit? Family? And if family, then what constitutes a family now in times
when de facto relationships, same sex marriage, regular divorce and casual sexual relationships
are part of changing societal norms?
It has been a largely accepted norm in most cultures that inheritance should be linked to blood
ties. In most legal systems, the right to inherit is limited either by relationship or by amount.
Either the group of related persons on whom inheritance may devolve is limited, as in common
law systems, or the amount any one person may receive from inheritance is limited, as is the
case in civil law systems.9
If right to inherit is limited by relationship, the question follows what relationships should family
provision legislation license to be eligible to make a claim on an estate? This is particularly
pertinent in a world with rapidly changing social norms. As marriage becomes more
impermanent and de facto relationships are more common, even the definition of what
constitutes a family is thrown into question.
7
Waters, D, Invading the Succession on Behalf of the Family in The International Academy of Estate and Trust Law Selected Papers
1997-1999 p. 656.
8
Banks v Goodfellow, [1870] 5 LR QB 549.
9
Hannah, Frances M. and McGregor-Lowndes, Myles (2008) “From testamentary freedom to testamentary duty: Finding the
balance.”

FAMILY PROVISION LAW IN AUSTRALIA
In Australian family provision legislation, the categories of people who may apply for a grant of
family provision under Australian law have expanded well beyond the traditional definition of
“family”.
The NSW Succession Act 2006 is arguably the most far reaching of any family provision law in the
world. In addition to spouses, children and grand-children of the deceased,
 former spouses
 de facto partners (at the time of death)
 those who were at any time dependent on the deceased and members of their
household;
 or a person with whom the deceased person was living in a close personal relationship
are all eligible to apply for a grant of family provision.10
Dependants and close personal relationship are hardly specific terms and there is much case law
on the subject. The Act is deliberately vague to allow judges the discretion to decide just as they
also decide if there is an evident need. Then a Judge has to decide exactly how much provision
should be given.
It is easy to see that not only has testamentary freedom been severely tampered with but that
the door has been widely opened to equity and also to a degree of uncertainty, especially when
so much is left to judicial discretion.
The Act places a large discretion on the Judge to decide eligibility, if they are eligible, have a
need, and what provision they should receive. Admittedly their discretion is tempered by case
law and the notion of moral responsibility and community standards, all of which is another
discussion for another day.
Possibly however the most controversial aspect of the NSW Succession Act is that it empowers
the Court to not only to make an order in relation to assets of the estate, but also to make an
order in relation to assets outside of the estate – notional estate.
Often will-makers transfer assets out of their estates before death (such as transferring a
property to another party) with the misconception that this will nullify any prospective family
provision claim. If there are no estate assets or if the estate assets are insufficient for a family
provision order, the Act allows the Court to make a notional estate order affecting assets that
didn’t directly belong to the deceased at his or her date of death.
Property that may be the subject of a notional estate order
Property that may be affected if the Court makes an order designating assets as notional estate
include assets that were:
 transferred to the beneficiaries during the ordinary course of the estate administration; or
 not owned directly by the deceased but over which the deceased exercised some form of
control, such as assets in a superannuation fund or a family trust.
The effect of this is to substantially broaden the range of assets that could be the subject of a
family provision order.
10
S. 57 Succession Act (NSW) 2006.

Clawback provisions
The Court can designate property as notional estate by nullifying any transfer of assets made by
the deceased with the intention of defeating a family provision claim. The Court’s power over
notional estate is so wide that it can even make orders because the deceased failed to transfer
assets.
The sort of acts or a failure to act that judges are looking for include failing to sever a joint
tenancy, transferring of assets for less than market value or entering into a contract to dispose
of estate assets on or prior to death for less than market value.
These types of transfers are subject to time limits. Essentially the outer limit is the act to have
occurred within three years prior to the date of death with the intention of denying or limiting
the provision that could be made for the applicant;
Not surprisingly, many critics argue that Australian family provision law has gone well beyond
its original purpose and now undermines testamentary freedom.11
A couple of cases recently before the NSW Supreme Court show how far family provision has
travelled since its origin as a scheme to assist potentially destitute widows.
Keep v Bourke [2012 NSWCA 64]
Joyce Keep made no provision in her will for her daughter Marion Bourke “because of her
complete lack of concern with me and other members of my family over a long period of time”.
Their estrangement continued over 38 years to Mrs Keep’s death with Bourke making no
attempt to reconcile.
The $620,000 estate was left entirely to Bourke’s sister and brother, neither of whom had ever
married or had children and lived in the family home, the only asset they had. Neither were
employed or had prospects of obtaining employment.
Bourke on the hand was employed, had received $120,000 from a property settlement and had
4 children all of whom were 20 years or older at the time of the testator’s death.
The Court of Appeal agreed with the trial judge that Bourke had a need for provision although it
reduced the original award by $25,000 to $175,000 – which totalled 28% of the estate. The
Court commented in their judgment “on the hurtful way in which her parents expelled her from
the family”.
Bates v Cooke, a case decided this September in the NSW Court of Appeal shows how
audacious applicants have become.12
11
For example Myles McGregor-Lowndes and Frances Hannah argue that,
“The original purpose of family provision law was to enforce the proper maintenance and support of a testator’s spouse and
children. In the 108 years since their introduction in New Zealand, family provision laws have had their influence extended through
judicial interpretation and active promotion of the priority of family claims on a testator’s estate as part of public policy.
Testamentary freedom, although never completely dominant in English law, is now seriously challenged in Australia.”
McGregor-Lowndes, Myles and Hannah, Frances M. (2008) Every player wins a prize? Family provision applications and bequests to
charity at 5. The Australian Centre for Philanthropy and Nonprofit Studies, Brisbane, Queensland.
12
Bates v Cooke [2015] NSWCA 278

Bradley Bates was an adult child of the deceased. His mother died leaving her estate to her
spouse. The mother and step-father had mirror wills which each left their estates to each other,
and then equally between their five children.
Bates’s claim was based on a need to top up his superannuation so that he could retire
comfortably in the future. He did not have immediate financial needs.
Whilst the Court of Appeal rejected Mr Bates’ claim, it certainly did not reject the notion of an
application for family provision in order to secure one’s retirement:
The circumstances of each case vary. In some cases it may be obvious that the
claimant requires substantial provision from the deceased estate to be reasonably
secure in retirement. But in more finely balanced cases, a claim for an order to build
up superannuation entitlements should ordinarily have a solid foundation in the
evidence. The appellant’s claim lacks such a foundation.13
FAMILY PROVISION AND CROSS BORDER ISSUES – OVERSEAS ASSETS
Assuming that a person meets the eligibility criteria under the Succession Act 2006 (NSW) and
has established that they have need for provision from the deceased’s estate does the Supreme
Court have recourse to assets outside of New South Wales?
The first issue to be determined is whether the deceased was domiciled in New South Wales at
the date of death.14
Power to make orders
If the deceased was not domiciled in New South Wales then the Court will only have authority to
make a family provision order if the deceased owned property in New South Wales.
Section 64 of the Succession Act theoretically permits the Court to make orders over property
located outside of NSW, which belongs to the estate of a person who was never domiciled in
NSW. However, the Court has put a limit on the legislation’s reach by stating that there must be
a connection with NSW for the Court to make a family provision order.
CASE LAW RE OVERSEAS PROPERTY
Three recent cases illustrate how the NSW Supreme Court has taken into account overseas
property and applied the law to cross border issues:15
Taylor v Farrugia (2009) NSWSC 801
The deceased died domiciled in Malta, leaving assets in both Malta and New South Wales. The
Court held that it only had jurisdiction over the assets in New South Wales, but took the Maltese
assets into account when making orders for provision.
Chen v Lu (2014) NSWSC 1053
The deceased died domiciled in New South Wales, leaving cash, shares and properties in New
South Wales and properties in China. The Court said the Chinese properties fell within its
13
Bates v Cooke [2015] NSWCA 278 para 89.
14
In most cases, domicile is determined by:
 origin – the place where the person was born; or
 choice – where the person voluntarily made his or her habitual residence.
15
My acknowledgement to Phillip Davis of Bartier Perry for these three case summaries.

jurisdiction but declined to make any orders affecting them, instead opting to make orders over
only the New South Wales assets whilst taking the Chinese properties into account when making
orders for provision. The Court also noted that the Chinese properties could be indirectly taken
into account when considering what order to make regarding costs.
In the Estate of the late Anthony Marras (2014) NSWSC 915
The deceased died in Italy but was domiciled in New South Wales, leaving assets in New South
Wales and an apartment in Italy. The Court said the Italian apartment fell within its jurisdiction
but for separate reasons declined to make an order affecting it.
In declining to make orders affecting the overseas assets of a person domiciled in New South
Wales, it could be inferred that the Court acknowledges there could be a practical problem in
enforcing its orders overseas. Even if New South Wales law asserts the Court’s authority to
make orders affecting overseas property, land registries overseas may not recognise the orders
in favour of a successful claimant, a problem lawyers are familiar with in cross border issues.
FAMILY PROVISION IN ASIA
SINGAPORE – Inheritance (Family Provision) Act 1966
In stark contrast to Australian family provision law, the categories eligible for maintenance under
Singapore’s Inheritance (Family Provision) Act (“IFPA) are very limited.
There are only four classes of persons counted as dependants:
1. a wife or husband;
2. a daughter who has not been married or who is, by reason of some mental or physical
disability, incapable of maintaining herself;
3. an infant son; or
4. a son who is, by reason of some mental or physical disability, incapable of maintaining
himself.16
The Singapore High Court reiterated in 2011 that:
“...the purpose of the IFPA is limited to the provision of reasonable maintenance;
the legislation is not for the purpose of obtaining legacies out of the testator's
estate.”17
Matters the court must review.
In deciding whether to make the maintenance order, the court must take into consideration a
wide variety of matters, including:
1. The dependant’s financial situation including any past, present or future capital or
income from any source of the dependent;
2. The conduct of the dependant in relation to the deceased or in general; and
3. Any reasons the deceased may have in making or not making a bequest (or will)
including the state of relations between the deceased and the dependant.
Maintenance
16
S. 3(4) of the Inheritance (Family Provision) Act (Cap. 138, 1985 Rev. Ed.)
17
APZ (by his litigation representative MC) v AQA and another [2011]3 SLR 1110.

If the deceased’s estate consists of movable or immovable property, maintenance may be paid
out of the income of said property. Alternatively, the property may be ordered to be sold to
fund the maintenance.
Provision for maintenance is generally in the form of periodical payments, but these payments
will be terminated in the following events:
1. in the case of a wife or husband, her or his remarriage;
2. in the case of a daughter who has not been married, or who is under disability, her
marriage or the cesser of her disability, whichever is the later;
3. in the case of an infant son, his attaining the age of 21 years;
4. in the case of a son under disability, the cesser of his disability, or in any case, his or her
earlier death.
Illegitimate children
In 2009, the Singapore Court of Appeal in AAG v Estate of AAH, deceased held that illegitimate
children could not apply for maintenance under the Act and that only legitimate children
(including legally-adopted children) could do so.18
Where application for maintenance is not permitted
The IFPA does not apply to the estates of deceased Muslims19
whose estates are dealt with in
accordance to Islamic law. The Muslim law of intestate succession and the Muslim law relating
to the making of wills are by virtue of sections 105 and 106 of the Administration of Muslim Law
Act applicable to Muslims dying, domiciled in Singapore.
The Muslim law can be circumvented, as can the IFPA, by the deceased having disposed of
property in any manner during his or her lifetime, another clear distinction from the Australian
law. A criticism levelled at family provision in Singapore is that it is possible for a husband to
disinherit his wife entirely, divorce her and then die at which point the wife would be left
effectively destitute.
Singapore family provision law is therefore far more limited than Australia’s, has no concept of
notional estate, and is much more closely aligned with principles of testamentary freedom.
MALAYSIA
In 1971 Malaysia passed the INHERITANCE (FAMILY PROVISION) ACT 1971, an Act which bears a
remarkable resemblance to the Singapore IFPA.
The Act does not apply to Muslims who form 61.3% of the country, nor to natives of Sabah or
Sarawak who comprise a further 20.4%. In essence the Act therefore applies only to the
Buddhist Chinese and Christian minorities of the Malaysian peninsula.
The applicable succession law for most of Malaysia is Islamic Law. The Islamic law of succession
allows only one third of the testator’s estate to be distributed by will, and only with the consent
of those who would otherwise inherit. The remainder of the estate will be distributed according
to the Islamic law of succession, with male blood relatives favoured. The rules for distribution
18
AAG v Estate of AAH, deceased [2009] 2 SLR 1087; [2009] SGHC 33.
19
The Administration of Muslim Law Act codifying the Muslim Law applies to Muslims a strict sense of separation of property exists
between Muslim spouses and they retain fully the legal capacity they possessed before marriage. See sections 113-119 of the
Administration of the Muslim Law Act.

depend upon the interpretation of Sharia law adopted by the particular Islamic group to which
the testator belonged.
CIVIL JURISDICTIONS
Most LAWASIA jurisdictions are civil legal based (e.g. Japan and Korea) or have systems that
blend civil law with another (e.g. Vietnam and China).
Rather than use family provision, civil jurisdictions have accepted that a testator has an inherent
obligation to provide proper maintenance for those whom the deceased had a moral obligation
to support. Such jurisdictions have traditionally favoured the forced share approach to
testamentary dispositions, with spouses and children entitled to definite shares of an estate by
statute, or by custom.
This Roman law concept is still seen today in many jurisdictions, including in most European and
South American countries,20
and in Japan, Scotland, and South Africa.
The relevant Roman law principles are those of terce (the right of a surviving spouse to a life
interest in one-third of the realty of the estate); jus relictae (the right of a surviving spouse to
one-half of the moveable property of a deceased spouse if there are no children, or to one-third
if there are children); and legitim (the right of children to one third of the parent’s moveables if
there is a surviving parent and to one-half if there are no surviving parents, all to be shared
equally).21
JAPAN
In Japan there is a statutory division of the estate of half to a spouse and half to all lineal
descendants.
If there are no lineal descendants, then the statutory division is two-thirds to a spouse and one-
third to any lineal ascendants. If there are no descendants or ascendants, then the division is
three-quarters to a spouse and one-quarter to living brothers and sisters. There is no allowance
for testamentary independence unless a specific will is made.22
SOUTH ASIA
Inheritance laws in South Asian countries such as India, Afghanistan, Bangladesh and Nepal fall
within the class of personal laws, which can vary within the country, depending on religion or
ethnic group. 23
A discussion of succession issues in these countries whilst fascinating, would demand a detailed
review of customary law, religious practice as well as case and statute law. India is a case in
point. The religion of the deceased determines the succession law that applies to that estate. For
example, succession among Hindus is governed by the Hindu Succession Act, 1956. Muslims in
general are governed by Islamic law. Christians are mostly governed by the Indian Succession Act
of 1925 though Protestant and Tamil Christians in Kerala or Goa, for example, are governed by
20
Ibid at 9.
21
Ibid at 9.
22
Ministry of Finance Japan (2006) Comprehensive Handbook of Japanese Taxes, Chapter IV, Inheritance and Gift Tax.
23
Elisa Scalise Women’s Inheritance Rights to Land and Property in South Asia: A Study of Afghanistan, Bangladesh, India, Nepal,
Pakistan, and Sri Lanka A Report by the Rural Development Institute (RDI) for the World Justice Project December 2009 at 3.

different customary laws. This level of complexity and detail is sadly beyond the scope of this
paper.
CONCLUSION
In conclusion, family provision legislation began as an attempt to resolve the failure of testators
to uphold a so-called “moral responsibility” to leave descendants with an equitable sum with
which to improve their lot after the death of a testator.
Its current application varies greatly across our region - from the minimalist approach adopted
by Singapore to the model used in NSW where the court has a very wide discretion to award to a
wide class of eligible applicants and can even apply notional estate to the provision.
Where to for the future? The Asia Pacific region contains a span of countries varying from
common law to civil, islamic law to customary law, secular to religious states. The diversity in the
region means that it is hard to imagine any one model taking hold.
Nevertheless it would be a brave person who bet against the notion that ultimately many
jurisidictions in the region will realise that that equity, particularly for women, is something that
needs to be factored into inheritance and succession law to make the future more secure for all.
Mark Hanna

FAMILY PROVISION AND INHERITANCE LAW IN THE ASIA PACIFIC REGION - A PAPER PRESENTED AT THE LAWASIA CONFERENCE PAPER MARK HANNA 9 Nov 2015

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