Bad Law Makes Hard Cases — The Case For Repealing or Limiting The Family Protection Act 1955

Abstract

This paper makes the case that the Family Protection Act 1955 (FPA) ought to be repealed or its application severely limited. Three principal arguments are put forward: first, the FPA is out of step with societal values about testamentary freedom; secondly, the broad discretion given to the court means the application of the FPA is unacceptably uncertain, leading to prolonged, costly and often bitter litigation; and thirdly, the application of the FPA is arbitrary, given that it only applies to property within the deceased’s estate upon death.

Keywords: Family Protection Act 1955, Family Provision, Testamentary Freedom, Succession

JEL Classification: K36