A COMPARISON OF AUSTRALIAN AND FRENCH INTESTACY LAW
This essay will examine the rights of the surviving spouse in intestate succession in the French Civil Law system and the Australian Common Law system. In France intestate law is found in Book Three of the Civil Code. In Australia the common law has been codified in legislation in each different State.
Despite similar historical roots, great differences can be found in Australian and French succession law. It has been argued that the reason for this difference was the disruptive influence on the evolution of French law of the French Revolution (1789) and the political and ideological principles that pervade French law and governance as a result. In contrast, English law was allowed a gradual evolution and changed as a result of increased economic stability brought by the development of an Empire and the Industrial Revolution.
The legislation regarding intestacy in both jurisdictions appears to be irreconcilably different. In France it is possible to disinherit a surviving spouse entirely while Australian law prevents this. Furthermore, should a spouse die intestate, Australian law seeks to provide for the surviving spouse before children whereas in France, children and other blood relatives are favoured before the spouse. Indeed, in French law, the spouse comes in to line to inherit only before the State.
Despite these laws seeming fundamentally different, the practical outcome in both countries is remarkably similar. When a spouse dies intestate the surviving spouse is protected, however in Australia this protection is achieved directly through intestacy legislation by providing the surviving spouse with property rights. In France, the legislation hardly seems to accord any rights to the surviving spouse but a spouse’s protection is ensured through the French social welfare system and the cultural concept of obligation alimentaire. 
For the purposes of this discussion, the examination of law will be limited to the rights of the surviving spouse on intestacy. It will limit the definition of a ‘spouse’ to one member of a heterosexual partnership that is recognised as a marriage under the law of the place of domicile. In discussion of modern law, it is assumed that males and females are accorded equal rights. Furthermore, for simplification, all issues of marriages will be assumed to be legitimate and not step or half childrenAnne2011-03-06T14:51:00
A little awkwardly expressed (especially the ‘half children’!).
This essay will discuss the historical evolution of the English Common Law as a precursor to Australian law. This will demonstrate the way in which early societal and marital obligations of the husband have impacted upon current intestacy law. It will also examine the historical context of French succession and intestacy law. Following this the current law in both jurisdictions will be illustrated comparing and contrasting the two laws. Before concluding, a practical example of the application of both sets of intestacy laws will be given through a case study modelled on In the estate of Marden (dec’d). 
II Context of Law
The differences between Australian and French intestacy law are best explained in light of an examination and description of the historical background of both sets of laws.
A History of English Intestacy Law
1 Inheritance of Personalty
From the 13th Century, general custom upon the death of a man was that one third of his personalty went to his wife, one third to his children or ‘bairns’ and one third he could do with as he wished.  This became known as the ‘dead’s’ part. Therefore intestacy and testacy could only occur in respect of this last third. If he should die intestate, the dead’s third was distributed in ‘pious’ purposes for the ‘good of the deceased’s soul’. 
Intestacy in the 13th Century was not a common occurrence. It was assumed that unless death was so sudden there was no opportunity for a confession, if a person died intestate they had probably died unconfessed to the grave danger of their soul.  As a result dying intestate, except in cases of sudden death was considered disgraceful. As at this time wills of personalty could be oral, it was often expected that while making his confession a man would also declare his testamentary intentions and should he fail to do so, there was no person fitter to do ‘all that can be done for a soul that is in jeopardy’ than the bishop.  Therefore, in the 13th Century, it was customary that the dead’s part of an intestate was at the disposal of the Judge Ordinary (usually a Bishop) who distributed it in pious uses to intercede for the intestate’s soul. The widow’s part and the children’s part also vested in the ordinary, and the widow and children took their entitlement from the ordinary’s hands.  As a result, the intestacy jurisdiction fell to the ecclesiastical courtsAnne2011-03-06T14:54:00
This is fascinating! A great choice of topic!.
The ordinary was not a true personal representative of the deceased intestate. The ordinary had no right to sue to get in the estate nor could he be sued by creditors of the estate. This was the same for any delegate to whom the ordinary entrusted the duties of administrator and was finally remedied in 1357 when administrators were accorded the right to sue as well as be sued.  At this time it also became compulsory for the ordinary to appoint an administrator. In 1529 it was stipulated that the administrator must be the widow or the next of kin or both. 
Administrators were supposed to distribute the intestate estate according to the above custom of thirds. However, frequently the ordinaries failed to control their appointees who would after paying debts keep the intestate’s personal estate for themselves.  Throughout the 16th and 17th Century this practice became so pronounced as to result in the law ceasing to have any clear rules as to the persons entitled to succeed to personalty upon the death of an intestate.  The ecclesiastical courts proved powerless to control administrators and they were not assisted by the Common Law courts who sought, at this point in time, to prevent the development of the ecclesiastical jurisdiction. In the early 17th Century, for example, it was laid down at Common Law that the ordinary, having delegated the administration was powerless to supervise the administrator or to compel him to act. 
(b) The Statute of Distributions 1679 
As a result of the inability to control the administrators of intestate estates, moves were made in Parliament to secure the passage of legislation designed to create a jurisdiction in the ecclesiastical courts to compel appropriate distribution by administrators. This legislation also contained a new legislative scheme for the distribution of personalty on intestacy that would prevail until the 20th Century.  Despite this, the act was unsuccessful in securing controlling jurisdiction to ecclesiastical courts as the Common Law courts remained obstructive. The court of chancery filled the gap by evolving doctrines pertaining to the administration of estates and the control of administrators.  The ecclesiastical courts were left with the task of appointing an administrator on intestacy. When the court of probate was created in England in the 19th Century in place of the ecclesiastical courts this division was officially recognised.  Today courts of probate stop short of granting letters of administration while courts exercising equitable jurisdiction control the administration of the estate on intestacy.
The Statute of Distributions imposed a scheme of intestate succession to personalty.  A widow was accorded the right to receive one-third of her deceased husband’s personalty if there were children of the marriage, the children were entitled to the remaining two-thirds.  If there were no children, the widow was entitled to a half share, the next of kin of the husband the other half share.  If there was no surviving widow the children took the whole estate. 
2 Inheritance of Realty
As a result of the feudal system, in 13th Century England, wills of land were not permitted. On the death of the freeholder, land was passed to the heir-at-law allowing the vast landed estates of the time to remain intact. The heir-at-law was determined according to primogeniture; the heir would be the eldest surviving son.
In order to avoid the common law system of inheritance, by the 15th Century land owners had begun to use ‘uses’, the 15th Century ancestor to a trust, in order to direct the disposition of their land after death. These uses were enforced by the Chancellor but were restricted in 1535,  and following this relaxed in 1540.  Despite this, after 1540 if a man died intestate common law rules providing for inheritance to the heir at law still prevailed. The real estate passed directly to the heir and there was no need for an administrator.
While it was not impossible for the deceased’s wife to inherit property as the heir, it was unlikely. Thus rules evolved securing limited rights of enjoyment of land interests for the surviving wife.  These were called the Right to Dower.
(a) The Right to Dower
At common law a widow was entitled to a life estate amounting to one third of all the real property of which her husband had been the legal owner at any time during their marriage.  Sometimes wives were endowed with specific land, set out by metes and bounds at the church door immediately prior to their wedding. In the absence of such arrangement, the heir had forty days after the death of his father to assign lands to the widow. The widow had a writ of dower to compel him to do so.  Despite this, dower was often barred using a use.
(b) Barring of Right of Dower
Uses set up groups of trustees which were self-replenishing, did not die and offered ways of avoiding feudal dues at the beneficial owner’s death or escheat if he died without an heir. They also afforded ways of restricting alienation of property from the male line of the family, ways of devising real property when common law did not allow it and ways of barring dower. As a result of this, some women had opted for ‘jointures’, guaranteed annual revenue from land payable to a wife should she survive her husband, often provided in a clause of the prenuptial marriage settlement. In 1535 the Statute of Uses provided that at law the beneficiary of a use was to be regarded as the legal owner in order to prevent what was seen as abuse. 
3 Other historical factors
The increasing wealth of England as a result of the growth of Empire in the 17th and18th Century, industrialisation and the decreasing influence of the Church in everyday affairs increased the importance of intestacy law as self-made men sought to protect their wealth through unrestricted testation.  Furthermore, improvements in the standard of living meant that people were living longer. As a result, penniless widows replaced orphaned children as a state issue. The law changed based on the assumption that parents were now surviving long enough to see their children become old enough to support themselves. 
B History of French Intestacy Law
1 Ancien droit
Old French law varied depending upon the region. In Southern France, the law remained Romanised, and despite variations between regions, the overwhelming culture of the law was Roman. This led it to be referred to as the ‘country of the written law’.  In the North, the law was heavily influenced by Germanic and Canon law in addition to Roman law. Here the region was referred to as ‘country of the customary law’.  As in England the general principle was primogeniture.
(a) Country of the Written Law
In contrast to the English law, the traditional Roman law upon which early French law was based did not make a distinction between personalty and realty. The estate was regarded as one single unit of property. The idea behind intestate succession centred upon maintenance and the moral duty to provide for one’s children. 
The early Roman law referred to as ‘legitime’ provided for an undisposable proportion of the property to the children, this was one third of the estate if the children numbered four or less, and one half if there were five or more.  Blood relatives such as siblings and parents were also entitled to a share. The ‘written law’ did not contain any notions of family property however, the idea of keeping property in the family was in the minds of the people and was expressed through the practice of leaving as much of the estate as possible to the eldest son, while ensuring that he saw to the maintenance and education of the other children. 
(b) Country of the Customary law
As in the southern parts of France, there was variation in the law depending upon local custom. However, two aspects of early French intestacy law stand out. The first is the Germanic concept of family property which was expressed through the vast number of means of keeping ancestral property in the family and carefully observed distinctions as to the nature and source of the property, the former of which can be compared to English law. 
This second aspect was most relevant in relation to the treatment of the wife following the death of her husband. ‘Ancestral property’, property the husband brought to the marriage was subject to the réserve. The réserve was the property that was guaranteed at law to his heirs, usually amounting to four-fifths of his property. The heirs could not be deprived of this property regardless of the will of the deceased. Therefore, Northern French law was characterised by forced succession regardless of whether the man had died intestate. If there were no children, the property was made available only to those who came from the family line from whence the property had come.
Acquired property was any property that had been obtained by the person through his own efforts or from some source outside of the family.  In addition to the remaining fifth of the ancestral property, a man was free to dispose of his acquired property as he desired. 
In addition to these two forms of immoveable property there was also moveable property, treated as a separate category. This too fell into the category of property that could be freely disposed of.  Should there be no ancestral property, the acquired property and movable property had the restriction of indisposability impressed upon them. 
2 Revolutionary Period
Following the revolution, forced succession continued under the new regime, however, it was not only concerned with protecting the interests of the family. The interests of the nation had to also be protected. This meant that testation was regulated more than before.
New legislation passed during the revolution did away with the distinction between the origins and nature of property.  As a result, property was treated as a single unit.  To prevent people from circumventing this via gifts and legacies, laws were passed removing all power of disposition effectively rendering all citizens subject to laws of intestacy.  In 1800 laws were passed allowing the husband to dispose of one quarter of his property if he had three or fewer children, one fifth if he had four children and one sixth if he had five children.  By fixing the disposable amount of a person’s property, the remainder effectively became a forced intestate succession. 
The disposable amount was varied several times throughout the following years, however, as a result of the political turmoil none of the altered versions came into effect.  These laws were designed to break up landed estates and increase the population creating a generation supportive of Revolutionary ideals.
3 Napoleon’s Civil Code
Napoleon’s code reversed some of the more liberal laws that resulted from Revolutionary ideals. The underlying principle of Napoleon’s succession laws was that a man’s rights of ownership ceased after his death. Therefore, the intervention of state in succession was indispensable because it concerned not only the people involved but the interests of the greater community. As a result, limited leeway for disposition was allowed as a sanction for parental authority and for worthy benefactions. 
Many of Napoleon’s laws still remain in operation today. However, no provision was made in the original code for a surviving spouse. 
4 Additional impacts upon French intestate law
In addition to the Revolution, differences between the English and French law developed in light of differing social traditions.
(a) Obligation alimentaire
Obligation alimentaire is the obligation placed upon family members to provide support to needy members of their family. This obligation is not confined to the nuclear family but also to other relationships and households and extended beyond food, sometimes as far as helping with funeral expenses.  Rooted in the ancient droit its current form came about in 1804 at a time when family solidarity was of greater significance in the support of individuals in need and gave legal expression to the expectations that existed in society.
The obligation applied to all families, not simply those where a family member had fallen onto public relief. It was not intended to pauperise the donor but reflected their capacity to pay.  Furthermore, it contained the idea that differences in condition of life between family members should not be extreme. 
The obligation has lost significance mostly due to the development of the welfare state and old age pensions. These are funded by taxation.  Despite this, obligation alimentaire is significantly involved in relation to the accommodation costs of older French citizens which is where it becomes relevant for the purposes of this discussion. Children are legally required to assist their elderly parents through the obligation and should they be unable to do so, aide social will step in.  Thus, additional French law and traditions ensure that a surviving spouse is protected financially to some degree after the death of their spouse.
A Current Australian Law
Australian intestacy law has developed from the English law imported by the First Fleet. As a result, it takes into account the same historical developments and reformation of intestacy law as experienced by the English Common Law, notably the Statute of Distributions.  In Australia there are common statutory codes governing the devolution in intestacy of both realty and property.  For the purposes of this discussion, the Victorian legislation will be used as a representative of all Australian law.
The husband and wife are regarded as separate persons with independent rights of intestate succession, this is clearly stated in the legislation,  and is evident from the use of the term ‘spouse’ in the wording of the provisions.  The doctrine of Dower no longer affects real estate. 
1 Personal or household chattels
Before a discussion of the rights of the surviving spouse in intestate succession can be commenced, it is important to discuss the definition of personal or household chattels. In Victoria, personal chattels mean any articles of household, personal use or adornment including cars that are not used for business purposes.  Monies and securities for monies are also excluded from this definition. 
2 Rights of the Surviving Spouse
In the majority of Australian states (not Queensland or Tasmania), spouses are conceded a paramount interest in all personal or household chattels in respect of which a deceased dies intestate.  This seeks to minimise the disruption brought about by the death of the deceased and should produce continuity of lifestyle for the remaining spouse and children.  In Victoria, where an intestate is survived by a spouse but no issue, the spouse is wholly entitled to the residuary estate. 
Where an intestate dies with issue, the spouse is entitled to all personal chattels.  In addition to this, if the estate (excluding personal chattels) is worth not more than $100,000 then the surviving spouse is entitled to the entire estate. If the estate is worth more than $100,000, the surviving spouse will receive $100,000,  interest on that amount from the date of the death of the intestate and the date of the payment of that amount,  and one third of the balance of the estate. 
3 Other Australian Jurisdictions
Similarities to the French law can be found in some other Australian jurisdictions. In Queensland, Western Australia, and the Northern Territory, if there is no issue of the marriage, the surviving spouse is required to share the residuary estate with the parents, siblings, nieces and nephews of the deceased.  In New South Wales, South Australia, Western Australia, the Australian Capital Territory and the Northern Territory, the spouse is also given an election to take an interest in the matrimonial home, constituting part of the intestate estate, in satisfaction either entire or partial, of an entitlement on intestacy. 
B Current French Law
The French describe intestate succession as succession ab intestat or succession légale. Few people in France make a will. As a result the laws on intestate succession are significant. 
In contrast to early French law and Australian law, there is no distinction between personal property and real property. France now adheres to the doctrine of universal succession, whereby all of the deceased’s property is included in the fund for distribution.  At the moment of the death of the deceased, all of the property vests in the heirs (saisine).  This confers immediate ownership on the heirs as well as the right to take possession of the deceased’s property without fulfilling any further formalities. 
1 La réserve héréditaire
All French wills are subject to the réserve. This is the part of the estate of the deceased which may not be disposed of in accordance with the wishes of the testator in order to protect blood relatives of the deceased. Thus French law continues forced succession similar to 13th Century English. The difference in modern laws can be attributed to the rise of the middle classes, the separation of the Church and state, and the increase in wealth experienced in England.
If there is only one descendant, the reserve is one half of the estate, if there are two children it is two thirds and if there are three or more it is one quarter.  On average, in willed estates, 76 % of inheritance in France goes to the children compared to 14% to the surviving spouse. 
2 The Rights of the Surviving Spouse
Blood relatives are highly favoured under French law. Indeed, there is a distinction between ‘lawful heirs’ on one hand, and successeurs irréguliers on the other.  As has been demonstrated above, originally the surviving wife of a French man was denied completely any form of inheritance of his property. While limitations are no longer as strict, preference is still given in France to blood relatives.
If the deceased is survived by one or more children or remoter issue, the surviving spouse obtains a life interest (usufruit) in one quarter of the deceased’s property.  There is no distinction between legitimate and illegitimate children or whether they are from an earlier marriage. If the deceased leaves no children, but parents, brothers and sisters or children from an adulterous relationship, the spouse receives a life interest in half of the property.  Additionally, the surviving spouse is entitled to one half of the accrued gains. 
The surviving spouse must still account for the gifts given to them by the deceased and prove that the deceased intended them to keep these as additional property. If there are no coheirs, only then will the surviving spouse receive ownership of any of the property. If there are ascendants (parents and grandparents) they will receive one half while the remaining half is divided evenly between the surviving ascendants.  If there are no descendants, all of the property will go to the spouse. 
These laws are softened through rules regarding matrimonial property. One is a device termed une donation de biens à venir which is partly a gift, partly a contract and partly a will which enables a spouse in an ante-nuptial agreement to transfer to the other spouse the whole or part of their estate when they die subject to the réserve héréditaire.  Furthermore, the surviving spouse by right receives half of the community property acquired during the marriage.  A spouse can make provisions in their will for their spouse however this too is subject to the réserve.  The law also recognises the concept of a gift between spouses of present and future property which is used by one spouse to regulate their affairs after the other dies. 
The obligation alimentaire also serves to soften these rules, placing an obligation upon surviving relatives to support the deceased’s spouse as discussed above. The existence of these extra laws and differing customs ensure that the spouse is protected and afforded rights which are comparable to those under Australian law.
C Case Study – In the Estate of Marden (dec’d) 
This case study will illustrate the application of Australian and French intestate law and compare how this application protects the rights of the surviving spouse. The outcome of the application of Australian and French intestate law will be compared, noting how despite the difference in the two laws, the outcome is relatively similar.
The deceased, Dean Gary Marden, died intestate on 19 September 2007 at Port Augusta, aged 37 years. He was survived by his widow, Gail Margaret Marden, and his seven year-old daughter, Aimee Jaycee Marden. 
A grant of letters of administration of the deceased’s estate was made to Mrs Marden on 31 January 2008. A statement of assets and liabilities concluded that the net value of the estate is $250,177.07. The assets of the estate included real property, a motor vehicle, a credit bank account and shares. The most significant asset of the estate was the former matrimonial home. 
2 Application of Australian Law
Pursuant to s 72G of the Administration and Probate Act which concerns distribution on an intestacy,  Mrs Marden was entitled to the sum of $10,000 and to one-half of the balance of the intestate estate. Aimee Marden, as the only surviving issue was entitled to the balance of the intestate estate. 
As Aimee Marden was an infant and therefore not sui juris, Mrs Marden was obliged to transfer Aimee Marden’s entitlement to Public Trustee,  immediately after the expiration of one year from the date of the death of the intestate. After applying Section 72G the Aimee’s share was $ 147,713.00. 
Mrs Marden advised the court that there were insufficient cash assets to pay out Aimee’s share of the estate. As a result a proposal was put forward that the Public trustee accepted a 40% interest in what had been the matrimonial home as Aimee’s share of the estate. Mrs Marden accepted this proposal. She subsequently applied for an order for permission to postpone the realisation of the property until Aimee turned 18. 
Australian law ensured some protection for Mrs Marden allowing Mrs Marden and Aimee to continue to reside in the matrimonial home thereby avoiding unnecessary emotional upset and allowing the continuity of ongoing family life. Gray J considered that:
in the context of the present case, the benefit afforded, and the injustice avoided by s 64,  concerns the minimisation of disruption and inconvenience to the lives of the surviving spouse and dependent issue of the deceased, the promotion of the continuity of the lifestyle of these persons, and the acknowledgment of the importance of the matrimonial home in the life of the surviving spouse. 
Thus, despite the fact that Australian law accorded a 40% share of the house to Aimee, the fact that there is a tradition of a protection of the rights of the surviving spouse meant that Mrs Marden was able to continue to live in the house until Aimee turned 18 at which point the property would be realised.
3 Application of French Law
The application of French law to the same set of facts would yield a different outcome. As the deceased is survived by one child, Mrs Marden would only be entitled to a life interest in one quarter of the property, $62,544.27 at which point it would revert back to the heir.  She is also entitled to one half of the community or acquired property. 
As the daughter of the deceased Aimee falls into the first class of French heirs, descendants of the deceased, to the first degree, that is there is one degree of relationship between the deceased and the heir.  Furthermore, Aimee is the sole heir and as a result is entitled to all the property as her father has died intestate.  As Aimee is not yet 18, if she chooses to accept the inheritance, she will do so under the ‘benefit of inventory’ meaning that the inherited property will be kept separate from her own and her liability for the deceased’s debts will be restricted to the amount received at inheritance. 
Mrs Marden is entitled to a life interest in one quarter of the property and one half of the community property acquired during the marriage.  Community property is that which is acquired by ‘the spouses together or separately during the marriage and coming from their own personal skill as well as from savings made from the fruits and revenues of their own properties.’  Thus, if the house and car were acquired during the marriage, Mrs Marden would be entitled to one half by right. To ascertain the full amount of property received by Mrs Marden more information regarding the history of the assets would be needed. However, it could be assumed that the matrimonial home was community property acquired during the marriage. If this was the case, Mrs Marden would receive a similar amount to that which she had received under Australian law. Therefore, the differing systems have produced a similar outcome.
As has been demonstrated, despite the fact that Australian and French laws seem irreconcilably different in relation to the rights of the surviving spouse in intestate succession, the outcome in both countries is quite similar. Thus, despite the initial appearance of offering very limited rights to surviving spouses, French legislation and culture provide similar rights to those found in Australia. The difference in the legislation can be attributed to differing historical evolution, the similarity of effects of application to societal and cultural traditions.
This is a particularly fine piece of work. The topic is very interesting and appropriate for a paper of this length. It is very well-researched and particularly well-written. You set out clearly your purpose and the aim of the comparative enquiry; the description of your selected systems was handled very well and your analysis, using the Marden case, was thoughtful and effective. With a bit of editing and revising for publication purposes, I think this paper has the makings of a journal article. 83%
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