By Tracy Collins & Morgan Collens
The concept of testamentary freedom in Australia has a rich historical background deeply rooted in English common law traditions. Testamentary freedom refers to an individual’s right to dispose of their property upon death according to their own wishes, as expressed in their Will, without interference from external parties.
Australia inherited its legal system from England, and the principle of testamentary freedom was established early on. During the colonial period, Australian courts primarily followed English common law principles, including those relating to Wills & Estates. Throughout the 19th and early 20th centuries, testamentary freedom was largely unchallenged in Australia. Testators had broad discretion in deciding how to distribute their assets, including the ability to disinherit family members or leave their estate to charitable organizations.
However, over time, societal attitudes towards family obligations and the distribution of wealth began to shift. This led to increasing calls for reforms to the law of succession to ensure fair and adequate provision for family members and dependents, especially in cases where they were left without adequate support.
In response to these concerns, Australian states and territories began to enact legislation to provide for family provision claims, which allowed certain eligible individuals to challenge the terms of a Will if they believed they had not been adequately provided for by the deceased. These laws introduce limitations on testamentary freedom by enabling courts to intervene and make orders for provision from the deceased’s estate to eligible claimants.
Despite these developments, testamentary freedom remains a fundamental principle of Australian succession law. While the law now recognizes the importance of providing for family members and dependents, individuals still generally have significant autonomy in determining how their assets will be distributed upon their death. However, this autonomy is subject to certain legal constraints and the possibility of family provision claims, which aim to strike a balance between testamentary freedom and the protection of vulnerable beneficiaries.
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