This volume continues the work of the International Academy of Estate and
Trust Law in 2003 and 2004 in examining through the juxtaposition of civil and
common law jurisdictions areas of fundamental importance to estate and trust
lawyers internationally. Here we focus upon two themes: the definition of
`family and the impact of the expansion of the concept of `family in law; and
family fights over wills and estates - what recourse family members may have
in challenging an estate.
Each theme also has contained within it the continuing struggle between
`private and `public: what responsibilities should be shouldered privately,
within `the family, and what responsibilities are properly those to be borne
by the state? The definition of family lies at the heart of this struggle -
because with each expansion of the definition comes an expansion of
responsibility in the private arena; but, at the same time, a public
recognition of relationships having consequences - expanding definitions of
family are necessarily normative in this sense.
The first Part, `The Challenge of the New Family for Law, considers the
`challenge both in the inter vivos and the postmortem contexts in the United
States, Canada, France, the United Kingdom, Australia and New Zealand. A
particular focus is upon the dramatic expansion of the definition of family
from the `traditional nuclear family consisting of a husband, wife and their
mutual children to a definition that includes unmarried heterosexual and same
sex couples living together and, in some jurisdictions to new kinds of
companionate partnerships that are not based on a sexual relationship. In some
jurisdictions such developments are simply an expression of sharing
responsibility by allocating it in the private domain, as opposed to the
public potentially through social welfare; in others, particularly in the
United States, it is a flashpoint a defence of fundamental institutions and,
with it, a defence of society itself.
The second Part, Family Fights over Wills and Estates, examines the law in
Australia, Switzerland, France, Mexico, and the United Kingdom. In its
comparison of civil and common law approaches we see how the law expresses the
same principle objects - protection of family and obligations towards key
family members - but does so from entirely different perspectives; and where
the common law which enshrined the notion of testamentary freedom is being
qualified through the expanding domain of family provision legislation, the
civil law which is based on codified shares and allocated responsibilities
expressed through proportionate entitlements in estates, is being qualified
through a range of disqualifying and varying mechanisms.
This volume is the fifth of the published deliberations of the International
Academy of Estate and Trust Law. It contains the work of solicitors,
barristers, notaires, judges and Professors of Law in areas of Trusts,
Inheritance and Succession Law, Tax and Comparative law. It will be of
interest to practitioners and scholars alike in the area of trust and estate
law.
