John Locke
One aspiration of succession law has been, and continues to be, the incremental resolution of the ever-shifting tensions between individual autonomy, social obligation and preserving social order in the context of the distribution of a person’s property rights on their death.
The law of succession is an important component of a legal system in which Australians expect their affairs, and those of their family, to be managed in anticipation of, and during, experience of incapacity for self-management and beyond. In the light of administration of succession law, the Court cannot allow its processes to be abused by proceedings instituted or maintained for a purpose other than a purpose for which the proceedings are designed as ruled in the case of Williams v Spautz [1992] 174. It is therefore presumed that in the course of property distribution, the property should be divided in a way justice should be done through distributing in accordance with the wishes of the deceased. It is therefore recommended that distribution of property should be done in a way that there will be no discrimination nor favouritism. This essay seeks to provide an insight into the perception of renowned philosophers in regards to succession and distribution of property.
Intervention of the state in the light for justice administration arise from the need to ensure that there are adequate considerations and taking care of those who cannot take care of themselves in the light of battling succession issues as argued and presented in the case of Secretary, Department of Health and Community Services v JWB and SMB [1992]. According to this case, the Court, focuses, almost single-mindedly, upon the welfare and interests of a person incapable of managing his or her own affairs through conducting different tests on everything against whether what is to be done or left undone is or is not in the interests, and for the benefit of the beneficiaries who are in need of protection, taking a broad view of what may benefit that person, but generally subordinating all other interests to his or hers.
The philosopher treats inheritance as a form of imputed bequest, whereby natural law imputes to the intestate an intention to leave his goods to his closest family members. Both bequest and inheritance find their justification in the prerogatives of owners to dispose of their property. He argued that the needs of a decedent’s dependents trump specific bequests prior to his dead arise from both bequest and inheritance which to a large extent are subject to the duty of charity. Bequest and inheritance thus order the relative claims of owners and others so that they are consistent with Locke’s more general theory of property.
Kant also contributed to the development of law by arguing that law authority can only arise from the moral duty of an individual to respect another person under the doctrine of what is right or wrong. Kant argued that establishment of a will should demonstrate a right in which the will should be aligned to the categorical moral duty of disclosure. Kant opposed concept such as colonialism, despotism and revolution The argument that he established states that for Right to be mutually achieved, the establishment of an Omni lateral will be the only way for persons’ wills to be aligned consistently with the categorical moral duties they owe to each other. The fact that rights of individuals cannot be uniform in context makes it effective to work on delivering a solid plan that can contribute to improvement in terms of execution of wills.
Immanuel Kant
Kant postulated that there exist rational human beings who physically affect one another when individuals are forced to act according to their wills. Kant argued that issues such as acting through engaging in coercion violates the moral duty that people have towards one another. Therefore, the rights to use coercion and intimidation will impact and hinder execution of wills.
This is also a renowned philosopher who first of all defined the international laws as a body of laws applying between sovereign states as well as other legal entities that are operating within the country jurisdiction. His desire to see corrupt laws, social practice changes and useless programs led to him to be brand as the founder of utilitarianism his greatest concern was on the need to have a uniform approach to law and regulations in order to create law and order that was deemed vital for realization of peace, development and stability. In the issue of succession, it has become a contested topic that led him to argue that for mutual coherence to be achieved in the course of passing the property to the third parties, as beneficiaries, there is a need to have a basic agreement structure that will limit any attempted disagreements which cause conflict to arise between parties hence making it difficult for the distribution to be done in an agreed program.
Believed on the principle of autarianism in which the held the believe that any action that an individual can bring about in their happiness status contribute directly to promoting overall happiness of people in the society. He proposed a raft measures of laws that would regulate succession in which he argued that Mill’s notion that the mind is a part of nature might be contrasted with philosophers who believe that the mind has a special status in the universe. Theists believe that our minds were given to us by an omnipotent and compassionate God for the sake of comprehension, whereas idealists believe that the mind plays a formative role in the construction of the universe. For such thinkers, a basic harmony between the architecture of mind and universe may appear to be a given—that is, if we can find a way to make our experience assume a certain shape, we can infer facts about how the world must be built.
Mill therefore holds that having a firm believe on the location and confines the individual to act in accordance with the law in delivering services and will execution in a way that each of the contesting parties will get a share of the property equally as proposed by the owner of the will. He holds that a good society is one in which people embrace transformations and they are able to work with one another to get justice delivered to oppressed.
This report focus on the work of John Locke
The preservation of mankind, according to Locke, is the most basic human law of nature. Individuals have both a right and a duty to save their own lives in order to accomplish that aim, he reasoned. Murderers, on the other hand, lose their right to life since they violate the law of reason. This is an indication that Locke is concerned with the development and realization of uniform development among people in the community.
Jeremy Bentham
The two most essential of them were, first, his belief in a natural moral rule that underlay the rightness or wrongness of all human activity, and, second, his acceptance of the empiricist concept that all information, including moral knowledge, is obtained from experience. In regards to governance system, Locke supports the representative unit which is regarded in which, he considered that which had a hereditary House of Lords and an elected House of Commons for initiating laws and regulation. That can support accountability and transparency among the law enforcing agencies in parliaments.
His perception towards bequest and inheritance is a complex analysis that is offering an opportunity for the justice administration department to ensure the wills are delivered honest services to client and the beneficiaries. It is the duty of the owner of the will to ensure that they have provided an implementable will that can be executed conveniently without having issues of the beneficiaries claiming that the will was not fair in the allocation that was made in its provisions.
To ensure that there is fairness in distribution of the will, the courts are mandated in Australia to conduct analysis of the will and preside over its execution with an objective of controlling any issues that might arise from execution of the will. Such an authority is bestowed upon on a need to act and ensure that the court can be in a position to make decision that will be for the benefit of the parties involved in the dispute regarding succession issues. That is why it adheres to the law of succession provision law of succession, which is a fertile ground for fiduciary relationships because property is routinely required to be held by one person (a fiduciary) on behalf of another.
According to Anglo-Australian law provisions, there is no concept of community ownership that is rising from family property or marriage. This means that during property distribution, there are no special provisions that are made to accommodate community ownership which is regarded as a strange issue in the Australian laws.
The concept of “family” is regarded as an expression in law, if not a function, of community. Familial bonds may be coextensive with communal bonds. They can cross communal boundaries. In any society, “family” and “community” are closely related concepts which makes it difficult for those concepts to be used in the context of succession law administration and as a result, Australian law is inclined towards transactional instead of dwelling on relational analysis of the rights and obligations of marriage partners. Hence the reasons why it does not acknowledge community ownership to the property.
In order to ensure that succession and administration of property under trust is managed in an effective manner, NSW provide basic guideline that must be implemented to ensure that the property is managed with fairness and equity. For instance, the office of executor and trustee of a deceased estate are “entitled” to remuneration in the course of executing the duties assigned by the owners of the will as argued in the case of nissen v Grunden. There is also provision for dealing with circumstances in which a person, not formally a party to probate proceedings, might be bound by determination of the proceedings. As well as how a probate suit challenging execution of a property should be taken with utmost care to ensure that justice is offered in the disputed case amicably as such a case is regarded as a potential case that deserve to be held in a matter of urgency and due considerations for mutual settlement of the dispute.
John Stuart Mill
The succession concept is a delicate issue that deserve to be handled with care in the course of discussion and determination of the care that a property is supposed to be granted in the course of executing a will. The narrow perspective that should be taken in the course of execution of a will should be made in due considerations to avoid escalation of issues of injustices because modern jurisprudential concepts do not neatly fit into a single analytical system of thought and there might be issues arising due to unfair implementation of the will.
The law of succession in NSW, is seen as a domain of the supreme court equity jurisdiction in which the supreme court takes the responsibility of ensuring that they protect execution of the various provisions of the law to aid in fair distribution of the resources that have been left to the beneficiaries as part of their inheritance. Each individual court jurisdiction under the supreme court is required to make careful provisions under this act to ensure that cases arising from succession of properties are handled procedurally so that all matters arising from the case can be solved amicably and settlement can be made in accordance with the law provisions. Strict adherence to implementation of succession law requires the need to follow rules and regulations imposed for the purpose of ensuring that parties in the dispute can be able to get justice. The Supreme court of Australia is regarded as an essential component in the implementation of Australian constitution hence making it a uniform body that oversee implementation of disputes including succession disputes that have not been solved by junior courts in the country as reaffirmed in the case of Kirk.
The existence of different jurisdictions in the country makes it difficult for equal justice to prevail in the context of administration of succession laws. This can be best analysed in the interplay between the concept of equity and probate law in which it is evident that there is a disparity in the way the different jurisdictional imperatives influence administration of justice. It is therefore recommended that the Supreme court should intervene in such disparity cases and issue a uniform guideline that can help in solving disputes and differences that will arise in the course of property distribution issues.
Australia, intestate succession remains such an important method of distributing estates that there have been a number of law reforms that are aimed at ensuring that there is fairness in the distribution of the property and that any issues that arise as a result of distribution of property will be handled with proper care and considerations for mutual benefits between parties involved. The pattern of distribution has been significantly transformed from a dynastic (vertical) to a spouse-focused (horizontal) system whereby issues dealing with property settlement have increasingly been focusing on solving dispute between family members in a family setting. The interstate disputes that are currently being experienced is what portion should children inherit from the interstate distribution and not what spouses should have received from the property distribution. This concept has led to drawing in debates and discussions regarding how to handle issues of interstate affairs for mutual benefit of parties involved without violation of rights of any party member that can arise in disputes.
Conclusion
Interstate distribution disputes are rampant in society and their issues vary from case to case an act that calls for intervention of the courts to ensure that justice is served in the wake of increased issues and disagreements regarding property distribution rights. In order to ensure fairness in distribution of properties, there is a need for uniform approach to be taken in regards to handling interstate distribution issues so as to ensure there is uniformity and application of law should be made in such a way that there will be no discrimination so that disputes involving settlement of property cases can be solved amicably. In incidences where there is dispute both litigation and alternative dispute resolution mechanisms should be adopted for fairness in property distribution to be granted to aggrieved parties.
Reference list
Williams v Spautz [1992] 174
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15
Hepworth v Hepworth (1963) 110 CLR 309
Smith v Smith [2017] NSWSC 408
Nissen v Grunden (1912) 14 CLR 297
Osborne v Smith (1960) 105 CLR 153
Nobarani v Mariconte [2018[ HCA 36
Kirk v Industrial Court of NSW (2009) 239 CLR 531
Bridgewater v Leahy (1998) 194 CLR 457
Boyce v Bunce [2015] NSWSC 1924
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