An early inheritance of a mortgage-free home was given to the younger daughter at the time of her marriage. It was well understood by all family members at the time that the other older daughter would receive her inheritance when the last parent died. However things didn’t go to plan.
Testamentary freedom is being free to dispose of your property how and to whom you wish. One Supreme Court judge said that this freedom of testamentary disposition is 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.
Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.
Many provisions in state and territory legislation on succession and wills allow for a willmaker to express a contrary intention in their will to override the statutory rule. Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen.
In succession law the court has discretionary power under family provision legislation to order provision from a deceased person’s estate to “eligible” applicants and in certain circumstances. It is not automatic.
The legal rules were introduced to remedy situations where willmakers failed to leave adequate provision for close family and certain other dependents as defined. It is not for second bites at the cherry. The court has wide power in deciding who pays costs of proceedings.