What is Testamentary Freedom and what are the constraints and limitations associated with Testamentary Freedom?

by Heckenberg Lawyers

Testamentary Freedom In NSW 

What is Testamentary Freedom and what are the constraints and limitations associated with Testamentary Freedom?

Testamentary Freedom is the freedom afforded to a person to decide who they want their property to go to when they die. 

Historically, a person's assets were distributed in accordance with what they set out in their Will, with no interference from other individuals or the Courts. If a spouse or child was left out of a loved one's Will, there was not much they could do to change the Will of the deceased.  

Over time we have seen this Testamentary Freedom restricted by the introduction of legislation in all Australian States and Territories, that allows a variety of people to make a claim against a deceased Estate. 

These types of claims are commonly referred to as "Family Provision Claims."  Family provision claims are claims by a person related to, or dependent on the deceased and who the deceased did not make adequate provision in their Will for their care, maintenance and advancement in life.  

If a Family provision claim is successful, then a Court is able to adjust the Will of the deceased to make adequate provision for the care, maintenance and advancement, in life of the person who has made the family provision claim. 

In successful family provision claims this means that beneficiaries actually named in the Will of the deceased, will have their inheritance reduced in order to fulfill the Court order.

There have been numerous cases before the Courts discussing the balancing of Testamentary Freedom against the need for a person to provide for loved ones after they are gone, even in instances of estrangement between the parties.  The Courts will look at a range of factors before deciding to alter a person's Will, including the relationship between the deceased and the person Challenging the Will, as well as the needs of the person challenging the Will and whether they have a financial need that could be satisfied by altering the Will.

There are also other restrictions that may affect Testamentary Freedom. This could be a lack of testamentary capacity by the deceased at the time they made their Will, such as dementia, or the deceased being under the undue influence of another person at the time they made their Will.

If you need advice on Testamentary Freedom and the power of the Courts to alter your Will in Family Provision Claims and Will Challenges, then you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyer - We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients

Our office are conveniently located in Macquarie Street in Sydney’s CBD.

Call today on 9221 2779 or email info@hecken.com.au


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