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Testamentary freedom and family provision in Australia

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

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

Of historical interest the Romans had the idea of restricting their citizens’ testamentary freedom so they would make provision for their children and others who may reasonably have a claim on their bounty.  Family who felt left out of a will or forgotten, providing they were in a relevant category under the law could bring a complaint. 

Fairness and equality are not the same

Issues of fairness and equality among beneficiaries often arise when someone is contesting a will.  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.  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.

testamentary freedom in Australia, freedom of testation, family law,

 


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 1 May 2021

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

© BHS Legal

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