Testamentary Freedom


A dominant provision in the common law world for about 200 years before the twentieth century was that in making a Will a person can leave their property in any way that they chose. Importantly the right to do what one liked with one’s own property reflected the social theory of the time – the importance of the rights of the individual, free will, contract, and the rise of a free market capitalist system.

However the concept of testamentary freedom promulgated in the 18th and early 19th centuries was never  absolute. A Will maker was seen as having a moral obligation to family members:

“[T]o disregard the claims of kindred to the inheritance is to shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law”

Therefore testamentary freedom has been modified where gifts have been found contrary to public policy – the principle that injury to the public good is a basis for denying the legality of a contract or other transaction.

The High Court of Australia had to decide where a Will maker left a life estate to his wife, and subsequently, to his sons in equal shares to be forfeited when the widow died if the sons or their wives failed to profess the Protestant faith.

In this instance prior to the creation of the will, two of the sons had married Catholics, and the third son was engaged to a Catholic. The Court held that

“it applies to a precise situation in which each of two sons already stood and upon which the third was about to enter. It meant that to avoid the forfeiture of the gift the son must, whether by chance or design, obtain a change of the situation so that either his wife changed her religion or ceased to be his wife; and that must be before his mother died.”

Without suggesting that these actions were designed to create an opposition between the wife’s religious beliefs and the interests of her husband, it provides an inducement to the Son’s to encourage the dissolution of their marriages contrary to public policy, and restrained religious choice.

“Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”

However, a provision in a Will that interferes with the sanctity of a marriage by encouraging the dissolution of a marriage are void.

Courts act according to generally accepted community standards as a ‘wise and just testator’. By applying this measure, the actual testator’s wishes may be overridden. This isn’t an argument against making a Will but it might help illustrating the role of Courts in the provision of dependents in your Will.



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