[No. 3
NOTES
The Case for Family Maintenance in Quebec
After twenty years of marriage Mr. Smith finds his wife (to
whom he is married in separation of property) no longer as
attractive as when he married her. Disinheriting her, he leaves his
entire estate to the Montreal General Hospital, with the result that
Mrs. Smith, who has no estate or income of her own, is left destitute.
Mr. Jones, who has two sons, one healthy and prosperous, the other
an unemployable invalid, for some perverse reason appoints his
healthy son as his sole heir, leaving the invalid son a charge on
public assistance. Have Mr. Smith’s neglected widow, Mr. Jones’s
passed-over son, any remedy in law ?
I
The problem of disinherison does not arise in primitive systems
of law, where the devolution of a man’s estate is immutably fixed
by custom. It has occupied the minds of judges and legislators
ever since the introduction of testamentary succession. There are
two ways in which modern legal systems protect a man’s nearest,
and, one hopes, dearest, against capricious disinherison: provision
for a fixed minimum share in the deceased’s estate, of which they
cannot be deprived by will, save for cause; or by empowering the
courts to award to them maintenance out of the deceased’s estate.’
The system of the fixed minimum share goes back to the legit-
imate portion of Roman law, where certain relations of the deceased
were entitled to prescribed fractions of their intestate portions,
of which, save for good reason, they could not be deprived 2 The
legitimate portion of a child was one-third of his intestate portion
if there were four children or less, and one-half if there were more.
Parents were entitled to a legitimate portion if, but for the will,
LJ. 435.
‘ See H.R. Hahlo, The Case Against Freedom of Testation, (1959), 76 S. Afr.
2A formal restriction on the freedom of testation was provided by the law
of exheredatio, under which certain classes of descendants had to be expressly
disinherited, otherwise the will was void.
McGILL LAW JOURNAL
[Vol. 16
they would have succeeded ab intestato. Subject to the same qual-
ification, brothers and sisters were entitled to a legitimate portion,
but only if they had been passed over in favour of turpis personae,
including infames and all those who earned their livings in disrep-
utable ways, such as prostitutes, actors and actresses.
The legitimate portion has become part of the civilian tradition
and, in some form or other, forms part of most, if not all, continental
legal systems. There are two main forms, exemplified respectively
by French and German law. In the French form, a testator cannot
effectively, by will or gift, dispose of more than a fraction of his
estate, which depends on the protected relations by whom he is
survived. In the German form, which reveals its Roman law ancestry,
the testator may dispose of his whole estate by will, but a protected
relation is entitled to a Pflichtteil, calculated as a fixed fraction of
the portion which he would have inherited had the testator died
intestate.
In all continental systems the testator’s children are entitled
to a legitimate portion. Children’s children may be entitled to their
parent’s share by representation. The general tendency of recent
years has been to include illegitimate issue. In most systems the
parents of the testator can claim a legitim, provided they would
have inherited ab intestato had there been no will. Brothers and
sisters are generally not entitled to protection, with Swiss law a
notable exception. A surviving spouse is generally entitled to a
legitimate portion.
Following Roman law, modern continental systems give lists
of grounds on which a dependant can be lawfully deprived of his
or her legitimate portion. Thus, Swiss law lays down that a depen-
dent may be disinherited if he has committed a grave offence against
the testator or a close relative of the testator or if he has failed
seriously in his legal duties towards the testator or his family. In
German law a descendant can be deprived of the Pflichtteil if he
has committed one of certain specified crimes against the testator
or his spouse, if he has failed to support the testator or his spouse
in need, or if he has led, without the consent of the testator, a
dishonest or immoral life. The surviving spouse can be deprived of
his statutory portion if he has given the testator grounds for a
divorce.
A different kind of fixed portion is found in the common law
of Scotland, where the surviving widow or widower, taking together
with the children of the marriage, is entitled to one-third of the
deceased’s moveable property as jus relictae (i), while the children
[No. 3
NOTES
take another third as ‘bairn’s share’. Of the third third the testator
can dispose as he pleases. If there are no children of the mar-
riage, the surviving consort is entitled to one-half of the deceased’s
moveable estate. In addition to the jus relictae (i), the surviving
consort is entitled to a life interest in the heritable estate of the
first-dying.
In America there is much variation. The law of Louisiana has
legitimate portions on the English model. A small number of states
retain dower and curtesy, obsolete in modern English law. Other
states give the surviving spouse a fixed, indefeasible share in the
estate of the first dying spouse, often equivalent to his or her
intestate share. Further protection for the survivor is provided by
the Homestead Acts which entitle the surviving consort as of right
to the enjoyment for life of the homestead.
II
Typical of a modern family maintenance system is English law.
In the time of Glanvill and Bracton, English law was similar to the
law of Scotland in that one-third of the moveable estate of a man
devolved upon his wife, and one-third upon his children, while the
testator had free power of disposition over the third third 3 Later
the fixed portion became obsolete, and for centuries now it has
been a characteristic feature of the English law of succession that
a testator can leave his children penniless. The surviving consort
was protected by the institutions of dower and curtesy. ‘Dower’
was the right of the surviving widow to a life estate in one-third of
her husband’s freehold estates of inheritance.4
‘Curtesy’, which
seems to have been derived from the law of Normandy, was the
right of a surviving husband to an estate for life in the entirety of
the lands and hereditaments of the wife, subject to issue having
been born alive of the marriage3 In a time when wealth meant,
to all practical purposes, landed wealth, dower and curtesy, of
which the surviving consort could not be deprived by will, con-
stituted a satisfactory protection against disinherison. Both dower
and curtesy lost in importance from the 1830’s onward and were
formally abolished by the Administration of Estates Act, 1925.6 The
result was a century of completely unrestricted freedom of testation.
3 Pollock and Maitland, History of English Law, 2nd ed., Vol. II, p. 350.
4 Halsbury, The Laws of England, 3rd ed., Vol. 32, para. 455.
GIbid., para. 446.
6 15 Geo. 5, c. 23, s. 45.
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[Vol. 16
This was changed in 1938 by the Inheritance (Family Provision)
Act, 1938.7 This Act, in its present form, confers upon the courts
discretionary powers to make reasonable provision out of a de-
ceased’s estate for the following classes of dependents:
(i) the
surviving spouse of the deceased; (ii) a former spouse of the deceas-
ed, whose marriage to the deceased was dissolved by divorce or
annulled; (iii) a son below the age of twenty-one years; (iv) an
unmarried daughter; and (v) a son or daughter who, by reason
of mental or physical disability, is incapable of maintaining himself
or herself. Adopted children are included, and so, under amendments
effected by the Family Law Reform Act, 1969,8 are illegitimate
children.
The Act applies irrespective of whether succession is by will
or ab intestato. Provision may be made for the claimant by way
of periodical payments or payment of a lump sum. The main factors
which the court will take into consideration in exercising its dis-
cretion are: (1) the past, present or future capital or income of the
claimant; (2)
the claimant’s conduct towards the deceased and
otherwise; and (3) the deceased’s reasons for the disposition made
by him in his will (if any) or for not making provision or further
provision for the claimant.
Where an order is made for periodical payments, it may be
varied if there is any substantial change in the circumstances of
the dependant or any other person substantially interested in the
estate.
Family maintenance on the English model has been adopted in
the Canadian common law provincesY
III
The only two legal systems left in the Western World which
have neither a legitimate portion nor family maintenance are those
of Quebec and South Africa. The reasons for this phenomenon are
substantially the same in both countries. Both French law, from
which the law of Quebec derived, and Roman-Dutch law (the pre-
7 1 & 2 Geo. 6, c. 45, as repeatedly amended. The 1938 Act was modelled on
New Zealand legislation, which was the first country in the Commonwealth
to introduce family maintenance.
s 17 & 18 Eliz. 2, c. 46, s. 18.
9 See e.g., the Dependants Relief Act of Ontario, R.S.O. 1960, c. 104; The
Family Relief Act of Alberta, R.S.A. 1970, c. 134; and the Testator’s Family
Maintenance Acts of British Columbia and Manitoba, respectively, R.S.B.C.
1960, c. 378 and R.S.M. 1970, T. 50.
[No. 3
NOTES
codification law of Holland), from which South African law derived,
had the legitimate portion or its equivalent. In both, it was abolished
under the influence of English legal notions during the second half
of the nineteenth century.’ When England departed from the prin-
ciple of unrestricted freedom of testation in 1938 by introducing
family maintenance legislation, neither Quebec nor South Africa
followed suit.
Is there a case for the introduction of some manner of protection
against capricious disinherison in Quebec and, if so, what form
should it take ?
The principle of unrestricted freedom of testation was in con-
formity with the laissez-faire ethos of the English upper middle-class
of the late nineteenth century. The fact that today one-half of the
Western World has something in the nature of a fixed legitimate
portion, while the other half (including England) has family main-
tenance, goes a long way in showing that such unrestricted freedom
is no longer in keeping with the ideas of our time. To mention but
one consideration, in the age of the welfare state it is hardly
tolerable that a testator, by disposing of his estate in its entirety
to outsiders, should be able to shift the burden of maintaining his
widow and surviving children to the state.
If it be, then, accepted that some form of protection is called
for, the question is what is preferable, the system of legitimate
portion or the system of family maintenance. The legitimate portion
has obvious virtues. A wife or child who has been passed over need
not come, hat-in-hand, to court and, by laying bare her financial
circumstances, make out a case for assistance, often as against her
own children or brothers or sisters, but can claim a fixed, easily
calculable portion of the deceased’s estate, as of right. If it is,
nevertheless, suggested that a system of family maintenance is
preferable, it is because the flexibility of such a system, which
undoubtedly has its disadvantages, is in modern conditions its great
strength. As long as the family was a fairly stable institution and
as long as wealth normally passed from generation to generation,
there was much to be said for a fixed legitimate portion. Today,
with the rising incidence of divorce, some men and women have
no longer only one family, but two or three different families. Owing
to inflation and the high rates of income tax and estate and
succession duties, inherited wealth has lost much of its former
10 In South Africa, the legitimate portion was abolished by the Succession
Act, No. 23 of 1874 (Cape).
McGILL LAW JOURNAL
[Vol. 16
importance. In these circumstances, only a system of family main-
tenance enables justice to be done in each individual case. Under
a system of legitimate portion even a wealthy wife can claim her
fixed share in her deceased husband’s estate, while even a poor wife
cannot obtain more than that share. Under a system of family
maintenance the court will generally refuse to make an award
in favour of a rich widow, but may grant the poor widow the major
part of her husband’s estate or its income. Again, under a system
of legitimate portion, the healthy prosperous son and his destitute
brother are entitled to exactly the same minimum shares in their
deceased father’s or mother’s estate. Under a system of family
maintenance the court, in making an award to a son, will take both
his merits and needs into account.
In its original form, the English Inheritance (Family Provision)
Act enumerated the surviving spouse of the deceased in the list
of dependents, but not an ex-spouse. Subsequently, a former spouse
of the deceased, whose marriage to the deceased was dissolved by
divorce or annulled, was included.’ This enables the English courts
to do justice in the not uncommon case where a man, after decades
of marriage, divorces his wife and marries a younger woman. Under
a system of legitimate portion his first wife has no claim to a share
in his estate, his second wife has. Yet the equities may all be in
favour of the ex-wife, who, having given him ‘her best years’, is less
likely to remarry than his second wife, and will often be no longer
able to compete in the labour market. Under a system of family
maintenance allowing awards to an ex-wife, the court may decide
to make an award in favour of his first wife.
How far the circle of dependents qualifying for family main-
tenance is to be drawn, is a matter of policy. Minor children and
adult children unable to earn a living ought clearly to be included.
So ought adopted and illegitimate children. New Zealand law goes
further than English law in that it allows claims by the testator’s
parents and grandchildren. At first blush, this appears to go some-
what far. But is it really unfair that, where a millionaire, who is
survived by indigent parents, leaves his whole estate to charity, the
courts should have the power to make provision out of his estate
for his parents, to provide them with support for the remaining
years of their lives ?
On principle there is no reason why a system of legitimate
portion should not be combined with a system of family main-
” Strangely, none of the common law provinces has taken over this provi-
sion of the English Act.
[No. 3
NOTES
tenance.12 However, it is suggested that there is no case for a
legitimate portion, in addition to family maintenance, in Quebec.
Where the spouses are married under the legal regime of partnership
of acquests (C.C. Arts. 1266 c et seq.), the surviving spouse is
entitled as of right to a half-share in the partnership acquests, and,
where they are married under the regime of separation of property,
there will generally be settlements in favour of the wife. As regards
children, a good cause for a legitimate portion could be made out
as long as fathers acted as the managers of the family estate in its
is well arguable
transmission from generation to generation. It
that today a parent has discharged his moral obligations to his
children if he has supported them as long as they were young and
has provided them with an education and training enabling them
to stand on their own feet, and that the law should therefore go
no further than give them a claim for maintenance out of the estate
of a deceased parent as long as they are minors or if, though adults,
they are unable, for some reason or other, to earn their own living.
IV
In South Africa which, as previously stated, shares with Quebec
the doubtful distinction of having absolute freedom of testation, a
family maintenance bill, drafted on English lines by the Law Reform
Commission, was referred by the Minister of Justice in 1969 to
Parliament. Parliament appointed a Select Committee which in a
report, less than a page in length, rejected the bill outright. 13 It
based its rejection on the following three grounds: (1) that it would
not be in the public interest to enact legislation which will result in
a serious inroad being made into the well established principle of
freedom of testation merely to provide for exceptional cases; (2)
that the liquidation and distribution of estates affected by the
12 As previously pointed out (see p. 535 above), early English law had the
equivalent of a legitimate portion. On the other hand, though most civil law
systems confine themselves to the legitimate portion, some of the early civi-
listic writers advocate family maintenance. In Justinian’s law, a father whose
son had died was entitled in case of ‘extreme need’ to support, on a minimal
scale, from his son’s heir, and Surdus, a North Italian jurist of the sixteenth
century, who wrote a standard work on maintenance (Tractatus de alimentis)
goes even further and submits that everyone who is under a duty to support
another transmits that duty to his heir or heirs. See B. Beinart, Liability of
a Deceased Estate for Maintenance, [1959] Acta Juridica 92, esp. at pp. 102,
103.
13 Select Committee 9, (1969).
McGILL LAW JOURNAL
[Vol. 16
proposed legislation would be inordinately delayed; and (3) that
it would not be equitable for a dependent in all cases to be paid
maintenance out of an estate. It is suggested that none of these
reasons is valid.
That cases in which a man, without rhyme or reason, disinherits
his wife or children are rare exceptions and will, one hopes, always
remain so, is, of course, true but this hardly dispenses with the
need to make provision for the exceptional cases in which it happens.
The purpose of family maintenance legislation, as Professor Joseph
Laufer of the New York University once put it, is ‘to correct flagrant
moral abuses’. 14 That ‘flagrant moral abuses’ do not often happen
has never been considered a reason to refuse to enact remedial
legislation for those cases in which they occur. Most fathers and
mothers maintain their children without legal compulsion, but all
countries have maintenance legislation to deal with the exceptional
parents who fail to do so. The blunt statement that it is not in
the public interest to enact legislation which will result in an inroad
into the principle of freedom of testation really begs the question.
Obviously, if one starts off with the premise that freedom of testa-
tion must be kept unrestricted in all circumstances, any departure
from it, however fair and reasonable, must necessarily be objec-
tionable. But is the premise sound ? Even the most extensive private
rights and powers are subject to the doctrine of abus de droit.
Surely, the same should apply to the freedom to make a will.
There is some substance in the argument that the winding-up
of a deceased estate may be somewhat delayed by family main-
tenance claims, but as cases in which a man disinherits his wife or
children will always be exceptions such delays are not likely to be
frequent. No public outcry about hardships caused by delays in
the liquidation of deceased estates has been heard in New Zealand,
Australia, England, or the Canadian common law provinces, where
family maintenance has now been in force for a considerable length
of time. The fact that in England the tendency in recent years has
been to extend, rather than restrict, the discretionary powers of
the courts in awarding maintenance out of a deceased estate shows
that the disadvantages of a family maintenance system are far
outweighed by its advantages.
The third reason mentioned by the South African Select Com-
mittee is based on a misapprehension of the principles on which
14Flexible Restraints on Testamentary Freedom – A Report on Decedents’
Family Maintenance Legislation, (1955), 69 Harv. L. Rev. 277, at p. 295.
[No. 3
NOTES
maintenance is awarded. Family maintenance legislation does not
provide for the payment of maintenance to qualified dependents
‘in all cases’. On the contrary, the award of maintenance will always
be exceptional, made only if the claimant is in need, and if, by
failing to make adequate provision for him or her, the deceased
has acted unfairly and unreasonably.
H.R. HAHLO ”
Director, Institute of Comparative and Foreign Law, McGill University.
