ON FAMILY PROTECTION AND TESTAMENTARY FREEDOM IN THE COMMON LAW TRADITION
ON FAMILY PROTECTION AND TESTAMENTARY FREEDOM IN THE COMMON LAW TRADITION

Summary/Abstract: During the past century, legal systems belonging to the Common Law tradition abandoned their unfettered attachment to testamentary freedom in favour of a seemingly novel restriction. Instead of borrowing the Civilian forced share or the Scots Law legitim, said legislations sought to protect the family and dependants of the deceased by expanding the latter’s duty to provide maintenance beyond death. Such a solution proved to be conceptually far enough from the Civilian solution so that it would not threaten its relationship with testamentary freedom. New Zealand was the first country to adopt such a form of family protection, which later inspired similar reforms in Canada, Australia and English Law. The present paper argues that, far from being a novel doctrine, the Common Law system of family protection builds upon some perennial answers given millennia ago within the Roman law of succession. Moreover, the drafters behind the New Zealand reform were possibly oblivious to this fact.

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