NSW Inheritance Law: Exploring Jurists' Views and Succession Act 2006

This essay examines inheritance law in New South Wales (NSW), Australia, focusing on the Succession Act and the perspectives of various jurists. It discusses the importance of wills in property distribution and the consequences of intestacy. The essay also explores the views of prominent legal thinkers such as Immanuel Kant, Jeremy Bentham, John Stuart Mill, and John Locke on inheritance, property rights, and the role of law in society. Kant emphasizes moral principles in inheritance law, while Bentham advocates for individual legal rights. Mill focuses on the impact of actions on society, and Locke discusses entitlement to succeed the estate or law of territory. The analysis highlights the ongoing tensions between individual autonomy, social obligation, and preserving social order in the context of inheritance law.

Law essays for NSW

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
Task- .....................................................................................................................................1
CONCLUSION................................................................................................................................7
REFERENCES:...............................................................................................................................8

INTRODUCTION
The inheritance law explains the about the provisions related to the distribution of the
property after the death of the individual. The inheritance law laid the provision related to
displacement of property among the family members in case where the individual who died has
not created the will for the property. Further more, the country like Australia has different
inheritance law for different territories. There is only one mechanism through which the testator
can powers to distribute its property by his choice and that one mechanism is called a legal will. In
will, the testator can write about the rights and duties of the executor. The legal wills in Australia
also includes the charitable donations and trusts. Moreover, in the absence of will, the property is
divided among the inheritance law family members as per the provisions of the inheritance law of
that particular state where the deceased resides. These laws are called the intestacy law of the
country. Furthermore, in Australia if the person dies without the will, then he has nob control over
the distribution of his property. So, in order to avoid this type of conditions, the solicitors highly
encourage the individuals to frame a will when they are alive. This report discusses about the
views of different jurists on the inheritance law.
MAIN BODY
Task-
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 Succession Act, 2006 explains about the procedure through which one can inherit
the property of his forefather. This includes the provisions related to the inheritance of property
that must be complied by every individual of the country. This code is applicable to all the citizens
residing in the start1. It would further explain the rights and the duties of the heirs. This act
provides for the distribution of the property when the deceased is died without forming the will of
1 Carney, Terry and Patrick Keyzer, "Private Trusts And Succession Planning For The
1

its property. Moreover, a will is a legal document that is duly signed and stamped by the
authorised body. It would further mean that a will specifies the next successor of the property after
the death of the individual. This will is responsible for distributing the property in the way which
the testator wants to distribute. This will can be framed by the lawyer who is authorised to do
so as per the rules and regulations of this act.
Further more, there is so much importance of inheritance law in the country. Firstly, it
provides for the procedure of distribution of property among the different successors of the
property. It would help in preserving the assets for the future2.
It will further help the parties in solving their conflicts related to inheritance of property. The
major advantage of inheritance law is that it has released and reduced the tensions between the
individuals for the distribution of property among the successors. It also creates a social obligation
among the parties of the case to oblige the property law. It would further mean that there are the
remedies that is to be provided to the aggrieved party of the case. This further elaborates the social
obligation of the testator to make a will. The testator is required to make a will in order to make
sure that no conflicts arises after his death in the matter of dispersal of the ancestral property
among the successors of the property. So, it is the social responsibility of the testator to make will
for its successor. It further helps the successors to inherit the property smoothly in the presence of
will after the death of the testator. It will also maintain the family relations. Otherwise, there are
cases where the conflicts arises among the family members only for the reason of distribution of
the family property among them. So, it is very vital that there must be the succession law in the
country. There are various reports and journals that explains more about the importance of
succession law.
Furthermore, the succession act succession act is also very important for maintaing the
social order in the country. The succession act provides for the rights and duties of the successors.
So, all the successors are bound to follow these rules and regulations as specified by the
succession act of Australia. Moreover, the property law also provides for the dismissal of the
successor in some exception conditions of the case. The Succession law in Australia gives the
importance of will. But, in case of no existence of will, it also laid the provisions related to the
dispersal of the property. It also has the limitation that it is not suitable for the aboriginal people of
2 Severely Disabled Or Cognitively Impaired In Australia" (2021) 19(2) Bond Law Review
2

Australia. The Succession act further provides for the powers of the testator while distributing the
property in the will that is framed by the authorised body. The statement given above is true as
the succession law has always been a remedy to the problems related to inheritance of property.
The inheritance law has always provided the remedy to the problems related to inheritance of
property by the successors of the deceased person. There are various views of different jurists like
Immanuel Kant, John Stuart Mill, Jeremy Bentham and John Locke. All these jurists have given
their views on different subject aspects of inheritance3.
The jurist Immanuel Kant explains the concept of inheritance in his theory of Moral
Law. The jurist explains that inheritance is the moral right of every individual who is entitled for
such property. This would mean that the principles of inheritance must relate to the moral laws.
This means that there must be morals involved while formulating the provisions of inheritance law
by the government. These morals must be applied in such a way as they are the duties of human
beings. These laws are also imperative applied on the individual. According to Kant, a good will
is a type of will that must be formulated by applying the moral principles in the law. So, the
theory of Kant is mainly based on the morals of the society. For instance, it is the moral that the
son must inherit the property of father after the death of the father. So, this type of provision must
be present in the inheritance law. This is so because this is the trend that is followed by the people
from the time immemorial. If these laws are not fulfilled, then there will be imbalance in the
society related to inheritance. In the absence of morals in inheritance, there would also be social
instability in the society. This will increase the violence in the society as a whole because people
will not get entitlement of their rights as per the inheritance laws of the country. There would be
maintenance of peace and order in the society if these laws contains morals in them as per the
views of Emmanuel Kant4.
Moreover, the jurist Jeremy Bentham opposed the natural law widely. The Bentham
always give favour to individual legal rights. The theory of law by Bentham is always dependent
on the enforcement of the individual rights. The jurist opposed the idea of God given or divine
rights of individual. According to him, the laws are made by the individual and must not be based
3 Chetty, Neetu, "The Law Of Succession" (2020) 1 Yearbook of South African Law
4 Drury, S.B., "John Locke: Natural Law And Innate Ideas" (2019) 19(4) Dialogue
3

on the divine rights. He also gave the utilitarian theory, which states that an individual can only
enjoy its happiness only up to the time when he does not injures the other person. Moreover, from
the time he infringes the rights of other person, he will also have to face the consequences of it. As
per the views of Jeremy Bentham, the law must be formulated in such a way which establishes the
happiness of the people along with putting obligations on them.
Another jurist named John Stuart Mill, explained the law as the moral theory. According
to this jurist, all the actions done by the individual are having some impact on the society. These
impact can either be positive or negative. Anything that has the positive impact that provides the
happiness to the individual is right. Moreover, the impact which is negative and causes hurt to the
person is wrong in the views of John Stuart Mill. He further argued that the government must take
steps for the welfare of the public. He further argues that the individual must take steps in order to
develop themselves. Along with this, the individual must also takes steps to develop the other
individuals of the society. The Mill explains that the justice must have two elements in it namely
rule of conduct and sentiments with sanctions. . The rule of conduct can be defined as the specific
lawful behaviour that must be followed by every citizen of the country. Every citizen is bound by
law to follow this rule of conduct. The second element is sentiment that is sanctioned by the
parliament of the country. This means that the person who does not follow the rule of conduct
must be gone through the punishments. These punishments must be written in the law of the
country. The Mill further explains that it is the prime right of the individual to own its property.
So, no individual must be deprived of its property rights. Moreover, he also gave his views on
inheritance law. According to Mill, the laws must bind the person from doing an act that is lawful.
In addition to this, the unjust laws are those laws that infringes the rights of other person. These
unjust laws must be banned by the government of the country. Further more, the law related to
inheritance and distribution provides the individual their inherent rights. These inheritance must be
according to the laws of inheritance of the country. The jurist further explains the importance of
succession law in the country. He supported the utilitarian theory. This theory explains about the
feelings of happiness and sadness by the people of the country. This states that any thing that
causes happiness can be termed as right for the individual. Further more, he explained that
anything that causes sadness to the individual causes the wrong for that person. Moreover, the
right must be appreciated and the laws must be formulated that is legally bind-able to all the
4

citizens of the country. The wrong done against the individual would be prescribed with the
punishments.
The circumstances under which an individual confers entitlement to succeed the estate or
law of territory playing crucial role in determining inheritance theory determined by thinker John
Locke into two parts of argument specified under Second Treatise of Civil Government where
firstly, it criticize contention regarding birth and does not consider man part of societal aspect. It
has been argued by the philosopher further that succession with respect to birth or determining as
member of civil society and wiling terms of inheritance. Secondly it rejects opinion conquest fair
military action conferring their political actions with regards to winner argues that it is
inappropriate relating to authority of ancestor of conquerors related to its successions. Where these
argument of Locke opposes the theory where agreeing to establish governmental authority
regarding legitimacy requirement of inheriting power does not limits as necessity to comply
existential authorization where closely discussing facets revealed extension of criticising
determining uniformity holding accountability with respect to succession. The theory of political
power by this thinker established at first instance contrasting paternally the governmental
approach where handling provisions anticipated its relation obligating with their connection
between succession and their willingness focussing on their requirements5.
The circumstances under which an individual confers entitlement to succeed the estate or
law of territory playing crucial role in determining inheritance theory determined by thinker John
Locke into two parts of argument specified under Second Treatise of Civil Government where
firstly, it criticize contention regarding birth and does not consider man part of societal aspect6. It
has been argued by the philosopher further that succession with respect to birth or determining as
member of civil society and wiling terms of inheritance. Secondly it rejects opinion conquest fair
military action conferring their political actions with regards to winner argues that it is
inappropriate relating to authority of ancestor of conquerors related to its successions. Where these
5 Gardner, E. Clinton, "John Locke: Justice And The Social Compact" (2020) 9(2) Journal
of Law and Religion
6 OLSEN, JAMES KARGE, "JOHN LOCKE: TWENTIETH CENTURY LIBERAL"
(2021) 2(1) American Business Law Journal
5

argument of Locke opposes the theory where agreeing to establish governmental authority
regarding legitimacy requirement of inheriting power does not limits as necessity to comply
existential authorization where closely discussing facets revealed extension of criticising
determining uniformity holding accountability with respect to succession. The theory of political
power by this thinker established at first instance contrasting paternally the governmental
approach where handling provisions anticipated its relation obligating with their connection
between succession and their willingness focussing on their requirement7.
The philosopher pointed out additional condition laid down in determining patriarchal
authority which undermines their powers related to rights over territories towards infants or
minors where male parent holds more control often confusing with this herein, including bestowal
of estates or individual pleasing it. In this regard it does not bar or limits the individual from
exercising its dominance without any restriction where thinker referring to male control over
estate where it expects or presumes by default that its children or minors shall have ownership
over such valuable assets further inherited by them. The various sources like legislation and
customary rights which regulates male member preference which internally limited father figure
who can freely receives award their assets according to their will. It also has authority to lay
conditions and terms over successors receiving property under set criteria of terms and condition
as outlined by an individual.
In furtherance to this creates linkage of inheritance with policy making authorities
compliance and giving rise to errors of patriarchal political dominance by exercising control over
terms of succession . For instance- male person in family obliged their child to abide certain rules
as directed by such person namely father when they are minor popularly subjected their contention
or governmental dominance where male members association is erroneous or mislead with respect
to control setting certain conditions relating to succession then in such circumstances patriarchal
or governmental authorization simplifying their consideration regarding them.
7 Hollond, H. A., "Jeremy Bentham" (2020) 10(1) The Cambridge Law Journal
6

CONCLUSION
The above thesis report explains about the inheritance laws of the country. Moreover, it
concludes about the principles of inheritance that must be followed by every individual to whom
such laws are applicable. The laws made for the inheritance are made for reducing the conflicts
between the people. This is because there are many cases which are only related to conflicts
related to the inheritance of the property after the death of the deceased person. This report also
summarises about the importance of the succession law in the country. Moreover, there are
various jurist who gave their individual views on the succession act. This report also concludes
about the thoughts and believes of the jurists namely John Locke, Immanuel Kant, John Stuart
Mill and Jeremy Bentham. All these jurists have different views on the succession act that is
described in the above thesis study. These jurists have provided with their theories with reasons.
Moreover, it also specifies the legislations related to the succession act of Australia. The
government of Australia has given the importance of formulating the will by the testator. But, in
there are also provisions in the succession act in the absence of will that how 5the property is to be
divided among the successors of the property.
7

REFERENCES:
Books and Journals
"Functional Succession Case." (2020) 20
Carney, Terry and Patrick Keyzer, "Private Trusts And Succession Planning For The Severely
Disabled Or Cognitively Impaired In Australia" (2021) 19(2) Bond Law Review
Chetty, Neetu, "The Law Of Succession" (2020) 1 Yearbook of South African Law
Drury, S.B., "John Locke: Natural Law And Innate Ideas" (2019) 19(4) Dialogue
Gardner, E. Clinton, "John Locke: Justice And The Social Compact" (2020) 9(2) Journal of Law
and Religion
Hollond, H. A., "Jeremy Bentham" (2020) 10(1) The Cambridge Law Journal
OLSEN, JAMES KARGE, "JOHN LOCKE: TWENTIETH CENTURY LIBERAL" (2021)
2(1) American Business Law Journal
von Leyden, W., "John Locke And Natural Law" (2020) 31(116) Philosophy
8