Testamentary freedom and family provision in Australia

‘Testamentary freedom’ is being free to dispose of your property how and to whom you wish in your will (testament). 

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

Another has said that the “freedom of testation’ is the law.²  Of course like all freedoms it should be used reasonably. 

The ancient Romans had the idea of restricting their citizens’ testamentary freedom so as to require testators to make provision for their children, and any one else who could have a reasonable claim on their bounty.  Family who felt left out of a will or who were forgotten could make a complaint providing they were in a relevant category under Roman law at the time. 

Fairness and equality are not the same

Issues of fairness and equality among beneficiaries often arise when someone is contesting a will. However the cases repeatedly show that it’s not about making things ‘equal’ between children for example, but about whether adequate provision for the proper maintenance, education or advancement in life of the person contesting the will was made by the will-maker in the circumstances at the time.

For example in one instance adult children were contesting their mother’s will for more.  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:….”

Moreover he 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.”³

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

“The Court’s role 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 specific 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.” ⁴

In other contexts the law does allow for will makers to make choices as they see fit for their circumstances.  The law does this by allowing for a will maker to state their intentions, which may be different to what the rules say.  Read more on the provision for contrary intentions in wills here.

1. Goodsell v Wellington [2011] NSWSC 1232, per Hallen J.
2. Kozak v Berwecki [2008] NSWSC 39 per Winderyer J.
3. Kraljevic v Kraljevic [2017] NSWSC 225, per Pembroke J.
4. Hinderry v Hinderry [2016] NSWSC 780, per Bryson J.

B Stead
BHS Legal
21 June 2018, updated 9 March 2023