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Testamentary Freedom

Testamentary freedom is a person’s right to decide how their possessions will be distributed after they die. In Australia, it is a fundamental principle of succession law, but it is not universal. In some countries, laws limit or direct the exercise of testamentary freedom. These laws are often intended to protect the interests of landowning families or to force testators to provide for their family and dependents. This article defines and explains testamentary freedom and its limits in Australia.

Testamentary Freedom In Australian law

In Australia, there is a longstanding acceptance of the principle of testamentary freedom. Historically, testators could distribute their estates without the courts’ interference. In this way, a person could disinherit a close family member such as one of their children, and there would be no real legal recourse.

One of the guiding principles of testamentary freedom is that the testator may be the best arbiter of appropriate provision for their family and dependents. In cases such as Slack v Rogan (2013) and Sgro v Thompson [2017], the courts focused on whether the testator was capable of giving due consideration to testamentary provision. The courts concluded that if the deceased did apply due consideration, they should give considerable weight to the wishes they set out in their will, as they were intimately acquainted with the parties.

Limitations On Testamentary Freedom: Capacity

Over time, some constraints have been placed on testamentary freedom under Australian legislation and by the common law. For instance, testamentary freedom only extends to persons who have testamentary capacity. An eligible person can bring a challenge to a will if there are any doubts about the mental fitness of the testator to make decisions about their estate at the time they wrote the will. The evidence adduced of a testator’s incapacity must be compelling enough to override the courts’ respect of testamentary freedom. The Supreme Court in the jurisdiction will assess the will’s validity based on the testator’s testamentary capacity and may choose to disregard their wishes. In that case, unless there is an earlier valid will, the laws of intestacy will dictate how the estate is distributed. 

The courts can also choose to overlook the instructions of a testator if they were unduly influenced or coerced into making bequests. Undue influence can be difficult to substantiate, but a will made under duress cannot properly reflect the testator’s testamentary intentions and will be found to be invalid.

Limitations On Testamentary Freedom: Claims For Provision

Certain eligible people such as spouses and children can contest a will and claim provision from the deceased estate. The categories of eligible persons varies depending on the succession law in the state or territory. A court may adjust the distribution of an estate to make adequate provision for the care, maintenance and advancement in life of the claimant. If this occurs, the beneficiaries of the will will receive a reduced inheritance.

Australian courts often express the difficulties in balancing the need for testamentary freedom against the moral responsibility of a testator to provide for their family and dependents. A recent case in New South Wales illustrates the tension at the heart of these claims. The NSW Supreme Court in Steinmetz v Shannon [2018] originally dismissed the claim, finding that the court must respect the testator’s testamentary freedom. Justice Pembroke felt that the deceased had enough wealth to better provide for his widow and had not done so, as was his privilege “after all, it is his property, his choice and his final act”. Instead, the testator had indicated he wanted this wealth to go to future generations of his family. Justice Pembroke felt that the deceased might be better able to assess a sufficient amount for his widow’s proper maintenance and advancement in life. The Supreme Court Justice decided that the deceased had not abused his right to testamentary freedom.

However, the following year, the Court of Appeal overturned this decision, setting aside the judgment of the primary judge and concluding that testamentary freedom only constrains the courts in so much as it must factor into the court’s deliberations. The Court of Appeal granted the widow’s claim for greater provision and awarded her a legacy of $1.75 million from her husband’s $6.8 million estate.

This case demonstrates that there are definite constraints on a person’s testamentary freedom in Australia. The person must have had testamentary capacity and must have drafted their will without undue influence. The family and dependents of the deceased are entitled to claim against the estate to receive provision that is adequate for their financial needs. 

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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