Balancing Testamentary Freedom and Familial Obligation: The Evolution of Testamentary Rights and Family Provision Claims in Succession Law

Contemporary succession law places great emphasis on the importance of executing a will, which serves as a legal document outlining the testator’s final wishes regarding the distribution of their assets. However, it is important to note that this right, known as testamentary ‘freedom’, is not absolute. In fact, it is subject to certain limitations, being family provision orders, established to safeguard the interests of a specific class of eligible dependents who might otherwise be unfairly disinherited. 

These limitations ensure that dependents have a legal recourse to secure maintenance, education, or advancements in life.  Family provision orders is not a new concept but rather can be traced back historically with the rise of testamentary freedom.

This blog will provide an insight into the origin of property rights, in particular, the right to acquire and dispose of property and its subsequent lead to family provision claims. It will further d argue that the Succession Act 2006 (NSW) (‘the Succession Act’) creates a moderate imbalance by favouring familial obligation over testamentary freedom through its expansion of the ‘eligible persons’ criteria.

Rise Of Testamentary Freedom

Testamentary freedom refers to the right of a testator to distribute their assets to beneficiaries as they see fit, without legal constraints or interference. While this freedom is not absolute, it has evolved over time in response to socio-economic and political changes. In contemporary succession law,  both men and women have the legal and testamentary right to acquire and dispose of property and can distribute their assets to beneficiaries as they wish.

This approach has replaced the antiquated concept of forced heirship, which restricted a testator’s ability to freely nominate beneficiaries of their choosing.  However, history has shown that unrestricted testamentary freedom presented a need for legal entitlements and safeguards to protect the interests of dependents in a family. These changes and legal discussions have had a profound impact on contemporary succession law in attempting to find the ‘right’ balance between autonomy and familial obligations.

Right to acquire property

The capacity to freely allocate property according to one’s volition is predicated upon the prior entitlement to acquire property, a right that was historically not universally available to all. Matrimonial unity in relation to testamentary freedom was an English common law principle, which also derived from the mediaeval era, that influenced Australian succession law. 

The concept of matrimonial unity was utilised in the formation of the law, which deemed a husband and wife to be a single legal entity, represented solely by the husband. Previous estate laws left women economically vulnerable.  As a result, women turned to the state for financial security and only then was it recognised that women should have the same property rights as their husbands, resulting in the Women Property Act (NSW) 1879. 

Legal One Family Lawyers in Sydney offers expert advice on family law and succession planning, ensuring your family’s best interests are protected.

Right to dispose of property and Family Provisions

It was the economic vulnerability of wives, resulting from the abolition of dowries, that sparked conversation regarding the moral right and duty of husbands to provide for their wives and family. With the scope of testamentary freedom enlarged for husbands, women were left with a ‘mere expectation’ that their husbands would provide for them, but this expectation was not a legal right. 

This raised concerns that the expansion of testamentary freedom also gave husbands the power to disinherit their wives, leaving them with no legal claim to property.   On that basis, family provisions emerged and the tension between individualism and the interests of family became more pronounced in legal discussions.

Philosophers and theorists have provided valuable perspectives on the concept of testamentary freedom when viewed from a family perspective. John Locke found that a father had the authority to pass on his property to his children, but he believed that such inheritance should be contingent upon the behaviour of the heirs.  Similarly, Jeremy Bentham, recognised the power of testation as means to motivate children, either by rewarding or punishing them for their behaviour and actions. 

The obligation of providing for one’s children was viewed as discretionary and conditional on the behaviour of the child. However, this obligation extended beyond simply incentivising children and instead toward the interests of society. John Stuart Mill recognised an individual’s freedom to distribute their assets as they see fit, but also acknowledged that this right is not absolute and should not contradict societal interests or lead to dependence on the state.   Mills’ ideals align with current succession laws, which emphasise that a person’s autonomy in distributing their assets should be exercised within the boundaries of societal values to ensure they do not conflict.

Impact on contemporary succession law

Legal protections are essential for ensuring fairness and equality before the law. The familial dynamics of dependency and vulnerability are inherent in every family composition and history has illuminated the need for legal protections to safeguard the interests of vulnerable individuals in society. Family law encompasses these protections through spousal maintenance and child support and succession law now does so through family provision orders; ‘to advance the remedy and abate the mischief’.

The public policy intention behind the initial creation of such orders is recognised however, the expansion of ‘eligible persons’ under the Succession Act without a corresponding need for a moral duty to provide in present-day society renders it inappropriate and unbalanced.  It is necessary for the Succession Act to re-examine the ‘eligible persons’ criteria and circumstances in which family provision claims are allowed, in order to prevent excessive utilisation of this legal mechanism.

Balancing Testamentary Freedom And Familial Obligations

The changing socio-economic and political climate and moral obligation

The principle of moral obligation is central to determining whether an individual has an obligation to provide for their family. H.L.A Hart, a philosopher whose work explores the concept of morality, has argued that moral rules and duties arise from social rules and vary across different societies.  In more recent decisions, particularly in McCarthy v McCarthy, moral duty and communal or societal expectations are used interchangeably as evidenced by Justice Young stating ‘So long as he complies with community expectations and what is sometimes called ‘moral duty’, the deceased is able to leave his property as he wishes’. 

Justices Gummow and Hayne dissenting in Vigolo v Bostin further found moral duty to be ‘misleading’ and instead recognised the importance of considering societal conditions and standards instead.  These perspectives provide valuable understanding on how moral responsibilities can evolve as societal values and norms change over time. In contemporary society, where men and women have access to employment and property rights, and the government provides child welfare benefits, the moral duty to support the family has shifted.

As a result of the emergence of new opportunities and the growth of individualism, the duty of providing for the family is no longer exclusively placed on the father, as it was in the past. Given the current social, economic, and political climate and the changing nature of the concept of ‘family’ it would be inappropriate to impose this obligation on the deceased. 

In comparing the original legislation Testator’s Family Maintenance and Guardianship of Infants Act (NSW) 1916 with the Succession Act the increase in eligible dependents is clear. However, part of the increase is evidence of the law evolving to include further familial compositions beyond the nuclear family model which was prevalent at the time the earlier law was enacted.

The earlier law allowed only the widower and children of the deceased to make a claim on an estate whereas the Succession Act recognised that the meaning of ‘family’ has expanded and has subsequently ensured the recognition of adoptive children, children born outside of marriage and de facto and same sex relationships.  The Succession Act, further moves beyond this to include individuals who were dependent at any given time and resided in the same household as the deceased or had a close personal relationship with them. 

The jurisdictional arm of the Succession Act s 57, in allowing a larger class of individuals to make a claim on an estate is signaling that the deceased is obliged to adequately provide for them all, despite changing societal views on moral duty and family.  On that basis, the law has created a significant opportunity for the encouragement of the depletion of estates through litigation and the involvement of lawyers.  This larger scope impedes upon testamentary freedom to a great extent and can invalidate the deceased’s wishes as expressed in their will. 

The current legal balance appears to prioritise the interests of eligible dependents over the testamentary autonomy of the testator. This approach is flawed particularly as it allows adult children, estranged children and stepchildren who may have their own sources of financial support or biological parents to make family provision claims.  The testator should not be burdened with the obligation to provide for every eligible dependent nor be forced to conform to legal standards of adequacy.

The decision in Burke v Burke reaffirmed these ideals by denying a provision claim by an estranged son alienated from his mother, the deceased, on his own volition for over a decade.   It was only when he became bankrupt did he begin phoning the nursing home to check in on her health, which the court found to be very convenient and made only out of self-interest.

The discretionary arm of the Succession Act s 60(2) outlines the factors that a court must consider when deciding whether to grant a provision.  Judges have criticised this criterion for being ‘amorphous’ noting it would benefit by being more specific.  The Court evaluates the size and composition of the deceased person’s estate and can designate certain property as notional estate, allowing it to recover undervalued assets that were transferred or gifted by the deceased within three years of their death.

  Additionally, the Court can recover assets held in structures that were regulated by the deceased.  The Succession Act in allowing such a far-reaching measure encroaches on the autonomy of individuals, overriding their testamentary freedom both during their lifetime and after death. It further regulates the private affairs and transactions of citizens affecting the balance and divide between the public and private spheres.

The Succession Act may not always succeed in striking the right balance between individual autonomy and familial obligations because while family provisions were originally intended as a legal safeguard, they have become excessively utilised and thus the cause for widespread litigation that runs counter to the wishes of the deceased, effectively invalidating their written wills.

Our solicitors are experienced in Family Provisions claims and can provide you with detailed advice about the risks associated with leaving eligible beneficiaries out of your will and what steps can be taken to minimise the risk of contention and litigation in the future.   

Contact Legal One Family Lawyers for expert family law services in Parramatta, Blacktown, Fairfield, Liverpool, Bankstown, Cabramatta, Merrylands, and Auburn,

Information contained in this article is current as of 9 December 2024

By Elizabeth Zouein and Valentina Tahmizian