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7 Otago L. Rev. 202 (1989-1992)
New Zealand's Testator's Family Maintenance Act of 1900 - The Stouts, the Women's Movement and Political Compromise

handle is hein.journals/otago7 and id is 212 raw text is: NEW ZEALAND'S TESTATOR'S FAMILY MAINTENANCE ACT OF 1900 - THE STOUTS, THE WOMEN'S MOVEMENT AND POLITICAL COMPROMISE ROSALIND ATHERTON* Introduction In September 1893 the women of New Zealand won the suffrage.' Also in 1893 the question of limiting testamentary freedom, the power to leave property by will, became an electoral issue in New Zealand for the first time. This was not a coincidence. Through a woman's eyes testamentary freedom came to be seen as a power that could be used against women; as a power not to bestow, but to take away; and a power which largely was one possessed by a husband and exercisable by him over his wife and children. Female suffrage made testamentary freedom a relevant electoral issue because, cast in such terms, it was an issue which seriously affected women. In the passage of the Testator's Family Maintenance Act 1900 the concern as to abuses of testamentary freedom was translated into a means for redressing injustice. By this statute the court was given power to over- ride a will to make provision for the spouse and/or children of a testator where the testator had left them without adequate provision in the will. Testamentary freedom was thus subjected to judicial control. This was a landmark piece of legislation, and the first of its kind in Anglo-Australasian law. This article traces its history.2 From the point of view of nineteenth century wives, a 'Testator's Family Maintenance Act' was a significant mechanism of protection and a recogni- tion of women's rights in their position as widows, redressing the imbalance, at least in part, caused by the demise of the common law right of dower. This had been a valuable right of the widow. It had provided her, in general terms, a life interest in one-third of her husband's real estate.3 Dower had thus qualified the husband's power of disposition in regard to real estate during his wife's lifetime and hence his testamentary freedom in regard to such property was restricted. Dower had also hampered efficient conveyancing as the right attached to the land itself and affected even subsequent purchasers of the land from the husband. Because of this, dower was almost universally avoided in England by the beginning of the Senior Lecturer in Law, University of Sydney. [Accepted for publication February 19901 1 For details on how the suffrage was obtained see for example Grimshaw, Women's Suffrage in New Zealand (Auckland 1972); Grimshaw, Politicians and Suffragettes: Women's Suffrage in New Zealand, 1891-1893 (1970) 4 NZJH 160-177; and Bunkle, The Origins of the Women's Movement in New Zealand: the WCTU, 1885-1895 in Bunkle (ed) Women in New Zealand Society (Auckland 1980) 52-76. 2 The Act in its most recent form in New Zealand is the Family Protection Act 1955. 3 The detail of dower is described for example in Megarry & Wade, The Law of Real Property (5th ed 1984) 544-546.

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