Limiting Testamentary Freedom: Does Family Provision Go Too Far?

A testator may dispose their property in any way that they see fit. This is known as testamentary freedom.

The Court has long respected testamentary freedom and allowed testators to disinherit close family members if they so desired, leaving those family members with no legal options to contest the will. However, testamentary freedom is no longer absolute and a person who has been unfairly left out of or insufficiently provided for in a will may challenge that will under the family provision regime.

The Succession Act sets out the family provision regime in NSW.

In a nutshell, this regime allows an eligible person to apply to the court for a share or a larger share of a deceased person’s estate, on the basis that they were left without adequate provision for their proper maintenance, education or advancement in life.

A successful family provision claim allows the court to vary the terms of the will and distribute the estate as they see fit. The operation of this regime directly conflicts with the ideal of testamentary freedom. It prevents the testator from exercising their testamentary freedom in manner which fails to provide for people who the testator should have provided for, for example, because they were dependant on the testator.

Testamentary freedom underpins the law of succession, and in family provision proceedings the court may have regard to evidence of the deceased’s testamentary intention. However, the deceased’s testamentary intention is not determinative, and the court will not defer to the notion of testamentary freedom in circumstances where the testator has failed to adequately provide for the family provision plaintiff.

This treatment of testamentary freedom has been repeatedly confirmed in the case law.

Testamentary freedom is not one of the factors referred to in s 60(2) of the Succession Act. It may readily be accepted that the legislation does not authorise a redistribution of an estate according to indeterminate and unreliable concepts such as “fairness or equality”, and that it authorises interference only to the extent of making adequate provision for proper maintenance, education and advancement in life.

The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. Testamentary freedom is constrained by the operation of the statutory jurisdiction, insofar as testators are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide.

The court should not interfere with the dispositions in the will except to the extent necessary to make adequate provision for the plaintiff’s proper maintenance, education, and advancement in life.

The Family Provision regime ensures that testamentary freedom is not absolute in Australia. However, it is evident, that the court still respects the principle of testamentary freedom and a testator may distribute their estate however and to whomever they wish. The Court will only interefere in circumstances where a person who the testator would have been expected to provide for is left with inadequate provision.

The Family Provision regime provides an avenue to remedy the unfairness or injustice which may result where a testator uses their testamentary freedom to avoid providing for persons who are dependant on the testator. This regime strikes the correct balance between testamentary freedom and a testator's obligations to provide for certain persons.