The Morality of the Family Protection Act 1955

Abstract

The Family Protection Act 1955 gives the courts a broad discretion to override dispositions made by will. Such legislation places a significant limit on testatmentary freedom. This paper considers whether such a limit is morally troubling. In order to make this assessment the morality of testamentary freedom is tested against the morality of traditional property rights. In the end, it is concluded that freedom of testation is not a moral right because it is not necessary to promote personal autonomy in the same way that traditional property rights promote autonomy. Once it has been shown that limits on testamentary freedom are not morally problematic a new criticism is levelled at the Family Protection Act regime. This criticism is directed at the role the Family Protection Act regime plays in perpetuating wealth inequality by concentrating wealth within family units. It is then concluded that a person’s death presents a unique opportunity to redistribute wealth without breaching moral rights.