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This article was written by Dr 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 working in higher education, Nicola joined Armstrong Legal in 2020.

Testamentary Freedom 


The term testamentary freedom refers to a person’s right to decide how to distribute their possessions after they die. It is a fundamental principle of succession law in Australia, but it is not universal. In some countries, the law limits or directs the exercise of testamentary freedom. These laws are often intended to protect landowning families’ interests or force testators to provide for their family members and dependents. This article defines and explains the power and constraints on testamentary freedom in this country.

History Of Testamentary Freedom In Australia

In Australia, there is a longstanding acceptance of the concept of testamentary freedom. Historically, a testator could distribute their estate without interference from the courts or other parties. In this way, a testator could disinherit a close family member such as a child, and that child would have no real legal recourse.

One of the guiding common law principles of testamentary freedom is that the deceased may be the best arbiter of appropriate provision for their family members and dependents. In cases such as Slack v Rogan (2013) and Sgro v Thompson [2017], the courts focused on whether the deceased was capable of applying due consideration to the issue of testamentary provision. The courts concluded that if the testator did use due consideration, they should give considerable weight to the testator’s wishes, as they are more intimately acquainted with the parties.

Limitations On Testamentary Freedom: Capacity

Over time, Australian legislation and common law principles have placed some constraints on the exercise of testamentary freedom. For instance, testamentary freedom only extends to those who have testamentary capacity. An eligible person can challenge a will if there are any doubts about a testator’s mental fitness to make decisions about their estate. The evidence of incapacity must be compelling enough to override the courts’ respect of testamentary freedom. The Supreme Court in the jurisdiction will decide on the will’s validity given the testator’s testamentary capacity and may choose to disregard the testator’s wishes. In that case, unless there is a previous valid will, then intestate succession legislation will dictate the distribution of the estate.

The courts can also choose to overlook a testator’s instructions if the testator was unduly influenced or coerced into making certain bequests. Undue influence can be difficult to substantiate, but common law principles state that a will composed under duress cannot properly reflect the testator’s testamentary intentions.

Limitations On Testamentary Freedom: Claims For Provision

Certain eligible people can contest the testator’s will and claim provision from the deceased estate. The list of eligible persons varies depending on the succession law in the state or territory. The court may adjust the distribution of an estate to make adequate provision for the claimant’s care, maintenance and advancement in life. As such, the beneficiaries of the will receive a reduced inheritance.

Australian courts often express the difficulties in balancing the need to respect testamentary freedom against the testator’s moral responsibility to provide for family members and dependents. A recent case before the courts in New South Wales demonstrates the tension at the heart of these claims. The NSW Supreme Court in Steinmetz v Shannon [2018] originally dismissed the claim on various grounds, including that the court must respect the deceased’s freedom of testamentary disposition. Justice Pembroke felt that the deceased had sufficient wealth to provide more 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 expressed a strong desire for this wealth to go to future generations of his family. Justice Pembroke felt that the testator might be more able to assess an adequate amount for his widow’s proper maintenance and advancement in life. The Supreme Court Justice ultimately decided that the deceased did not abuse his right of freedom of testamentary disposition.

However, in Steinmetz v Shannon [2019], the Court of Appeal overturned the Supreme Court’s decision. The Court of Appeal set aside the judgment of the primary judge, concluding that testamentary freedom only constrains the courts in so much as it must factor into the court’s deliberations. The higher court granted the widow’s claim for greater provision and ordered that she receive a legacy of $1.75 million from her husband’s $6.8 million estate.

As this case demonstrates, there are definite constraints on a person’s testamentary freedom. The person must have testamentary capacity and draft their will without undue influence. The deceased’s family and dependents are entitled to claim against the deceased estate to receive provision that is proportionate to their financial needs. The contested wills team at Armstrong Legal can further clarify the nature of testamentary freedom and the courts’ power to alter the distribution of an estate because of challenges to the will or claims against the deceased estate. Please contact the team for any advice on 1300 038 223.

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