Testamentary Freedom v Family Obligation – Where Does The Balance Lie?

Our property is ours to give. This belief forms the foundation of the common law principle of testamentary freedom - that by the terms of your last will & testament, you may leave whatever you choose to whomever you choose. In Bermuda, the Wills Act 1988 enshrines this principle at clause 5(1): "...every person may dispose, by will executed in accordance with this Act, of all real estate and all personal estate owned by him at the time of his death.". Nevertheless, this freedom was never seen as entirely divorced from the context of family obligation, as was eloquently expressed by Chief Justice Cockburn in his judgment in the case of Banks v Goodfellow (1870) 5 LR QB 549, 563-565:

"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." Historically, the concept of testamentary freedom in the English common law developed against the backdrop of the end of feudalism, as medieval inheritance of land on intestacy had been based on the law of primogeniture, where the firstborn son took all. It also developed within the intellectual discourse and exchange of theories of political and legal philosophy that explored the inevitable conflict between state control and personal freedom and promoted the concept of freedom of contract. Thus, John Stuart Mill in his work, Principles of Political Economy (1848) Bk II, ch 2 [4], said: "...the ownership of a thing cannot be looked upon as complete without the power of bestowing it, at death or during life, at the owner's pleasure....".

In many parts of the world - parts of Europe, South America and the Middle East, which follow the civil code or Sharia law, this remains, at...