Gender, Insanity and Moral Obligation: Widows and the Action for Testamentary Incapacity in Late-Colonial New South Wales

Abstract

The enactment of a Testator’s Family Maintenance Act in 1916 is rightly remembered as a signature achievement of New South Wales’ early feminists, providing protection against the destitution that a cruel will could inflict upon a testator’s family. Yet in the decades before its passage, a challenge to a husband’s testamentary capacity offered an alternative mechanism by which a widow could challenge a will. This thesis explores the stories of the widows who braved the action for testamentary incapacity, in order to recover its social and cultural significance. It identifies the courtroom as a site of dense cultural discourse, in which dominant tropes of gender, insanity and moral obligation structured the court’s consideration of a widow’s claim. It shows that widows played upon these tropes, deploying them in narratives of virtue and transgression to win substantive relief. The action for testamentary capacity thus offered hope for disinherited widows seeking to break the financial shackles posthumously imposed by their husbands. However, in demanding the sublimation of their lived experience to fit dominant cultural narratives, the action excluded women who were unable to perform the necessary identity, perpetuating the same inequality that widows came to court to address.