Freedom of Testation: The Inheritance (Family Provision) Bill

Publication Date01 March 1938
DOIhttp://doi.org/10.1111/j.1468-2230.1937.tb00027.x
Date01 March 1938
MODERN
LAW
REVIEW
March,
1938
FREEDOM
OF
TESTATION
THE INHERITANCE (FAMILY PROVISION) BILL
The
Social
and
Legal Consequences
of
the
Bill
(I)
Validity
of
unrestricted testation and inheritance
The Inheritance (Family Provision) Bill is
a
measure of considerable
social interest. The broadest issue involved is the social and ethical validity
of inheritance itself. This implies two claims: the right of free testation
and the unrestricted right to take by way of inheritance.
It
has often
been said, and some opponents of the Bill still assert, that free testation
is
a
“natural right”-a necessary incident of property (e.g. Locke)-but
this is now untenable with the recognition that private property is also
a
function of society and should not be employed to the detriment of its
interests (e.g. Mill,
Principles,
Vol.
I,
Bk. 11, Chap.
I1
;
Laski,
Gvammar
of
Politics,
p.
187, 52-6).
Direct legal expression has been given to this
more recent view in the Continental law relating to
abus de droit,
sect.
I
of the Soviet Code, and the doctrine
sic utere tuo
ul
alienum non laedas,
which is the basis of much of the English law
of
tort. The ethical claim to
inheritance rests largely upon that stock picture of anguish, the starving
widow and her brood of orphans. But, as
a
rule, starving widows were
the wives
of
penniless husbands, and the average age of the “orphan”
who inherits under his parent’s will is about forty. As Mill points out,
the only morally justifiable claim which
a
child has against its parent is
to education and training which will
fit
it
for
a
successful life. The Inheri-
tance Bill to some extent recognises this narrower claim, since its provisions
operate not in favour of all sons, but only those who are minors or are
through mental or physical incapacity unable to earn
a
living.
The economic objections to unrestricted inheritance are obvious. It
has been
a
dominant factor in the evolution
of
extravagantly unequal
incomes and
a
class society (“there is a continuous hereditary transmission
of inequality of income
. . . .”
Cannan,
Wealth,
p.
208),
and in the en-
couragement of idleness on the part of beneficiaries. According to Taussig
(Principles,
Vol. 11, p.
249)
the right
of
free testation is
a
necessary condi-
tion for the production and growth of capital, since domestic affection
and family ambition are the motives substantially responsible for the
accumulation of wealth. But during
1923-5
of those testators who left
LIOO,OOO
or more,
33
per cent had no surviving child and
23
per cent
neither spouse nor children,
In
fact, the elimination of these incentives
would not necessarily result in a dearth of new capital. A vast proportion
of the capital of this country is represented by the undistributed profits
of companies. Further, the State itself often provides new capital from
taxation.
(2)
The consequences
of
restrictions on testation
If
the arguments in favour of free testation and inheritance are unsound,
the question naturally arises whether restricted freedom would ensure more
desirable consequences. Wedgwood
(The Economics
of
Inheritance,
1929)
and Dalton
(Inequality
of
Income,
1gz5),
among others, have examined
the social effects of limited testamentary power as compared with complete
freedom.
It
should be noted that both were concerned with the system,

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