Testamentary freedom in Australian law and family provision claims

Being free to dispose of your property how and to whom you wish, that is the freedom of testamentary disposition is, as a Supreme Court judge said a “prominent feature of the Australian legal system.   Its significance is both practical and symbolic and should not be underestimated.”1 Of course, like all freedoms it should be used reasonably and not abused. 

An example of the significance of this feature being applied was in a situation where adult children were contesting their mother’s will for more provision.  The Court said:

“…a testator is entitled to be unequal in the treatment of her children. Fairness and equality are not required by the law. Within the limits of the law, testators may dispose of their estates as they see fit. Adult children have no automatic right to share in the estate of a parent. Nor do they have an automatic right to equality between them. That may be the system in European countries, including possibly in the Balkans, but it is not the law in Australia. As I have observed on several occasions, subject to the family provision sections of the Succession Act, freedom of testamentary disposition remains an integral part of our law:….”

And following on the Judge added:

“Related to that point is a principle, …..that the courts naturally respect and give deference to the considered judgments of apparently rational and sensible testators.”2

The Court has a wide discretion in its role deciding claims for family provision. In this respect it is worth noting what another judge has said and cited subsequently3:

“The Court’s roles is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity.  Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant.  Rather, the Court’s roles is of a specifc type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.””

 


1. Goodsell v Wellington [2011] NSWSC 1232, per Hallen J.
2. Kraljevic v Kraljevic [2017] NSWSC 225,
per Pembroke J.
3. Hinderry v Hinderry [2016] NSWSC 780,
per Bryson J.

B Stead
BHS Legal
21 June 2018, updated 12 February 2019

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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