Balancing Testamentary Freedom and Moral Duty in Australian Estate Law

One of the fundamental principles of estate planning in Australia is testamentary freedom — the right of individuals to distribute their estate as they see fit. However, this right is not absolute. The law also recognizes moral obligations, ensuring that certain family members, particularly children, are not left without adequate provision.

The Succession Act 2006 (NSW) allows eligible persons, including children, to contest a will through family provision claims if they believe they have been unfairly excluded. Courts assess various factors such as financial need, the relationship between the testator and the applicant, and competing claims from other beneficiaries. This creates a tension between personal autonomy and family responsibility — a balance that must be carefully managed to avoid costly disputes.

Additionally, subpoenas can play a crucial role in family law disputes, including will contests. A subpoena is a legal document that compels a person to produce documents or appear in court to give evidence. If one party believes relevant evidence is being withheld, they can request the court to issue a subpoena.

At CM Lawyers, we specialize in navigating these complex legal landscapes, helping individuals draft legally sound wills while considering potential challenges. Whether you wish to protect your estate from future disputes or contest a will, our estate planning and family lawyer team is here to guide you.

A Parent’s Last Wish: A Story of Testamentary Freedom and Family Ties

Margaret and her son, Daniel, had been estranged for nearly two decades. Their once-close relationship had crumbled due to ongoing disputes over finances and life choices. Feeling abandoned and hurt, Margaret decided to exclude Daniel from her will, believing that he did not deserve a share of her estate. Instead, she planned to leave everything to her long-time caregiver and a charity she deeply supported.

However, upon Margaret’s passing, Daniel, despite the estrangement, contested the will under the Succession Act 2006 (NSW). He argued that his mother had a moral duty to provide for him, given his financial struggles and deteriorating health. The court examined their relationship, his financial need, and Margaret’s intentions. In the end, the judge ruled in Daniel’s favour, awarding him a portion of the estate despite Margaret’s clear wish to disinherit him.

This case exemplifies the delicate balance between testamentary freedom — the right to distribute one’s estate as desired — and moral obligations under the law.

The Moral Obligation to Provide for Children

While the law does not enforce a blanket rule that parents must leave assets to their children, courts often consider moral duty when determining estate disputes. Factors influencing moral obligation include:

• Financial Need: If the child is financially disadvantaged, the court may see fit to grant them provision.

• Estrangement: A long period of estrangement may weaken a claim, but it does not automatically disqualify a child.

• Contributions to the Estate: If a child contributed financially or non-financially to the parent’s assets, this can strengthen their claim.

• Competing Claims: The court will consider the claims of other beneficiaries, such as spouses or dependent relatives.

Case law in NSW, such as Steinmetz v Shannon [2019], has shown that the court tends to favor claims where financial hardship is evident, even if the testator intended otherwise.

Subpoenas can be issued to obtain critical financial records, medical reports, or other documentation necessary to establish a claim under the Succession Act. If a party refuses to provide relevant documents voluntarily, a subpoena can ensure that the necessary evidence is brought before the court.

How to Strengthen Your Testamentary Intentions

If you wish to exercise testamentary freedom while minimizing the risk of disputes, consider the following:

• Draft a Detailed Will: Clearly state why you are excluding a particular child and include supporting reasons.

• Prepare a Statutory Declaration: A signed statement outlining the reasoning behind your decisions can provide additional legal weight.

• Use Trusts and Joint Ownership: Certain assets, such as property held in joint tenancy or funds in a trust, may bypass the will, reducing the chance of a successful claim.

• Consult a Family Lawyer: Legal professionals can help structure your estate to reflect your wishes while mitigating risks.

At CM Lawyers, our family and law experts can assist in drafting comprehensive wills that align with your intentions while anticipating potential challenges.

What Happens if a Child Challenges the Will?

When a will is contested under a family provision claim, the court follows a structured process:

1. Determine Eligibility: The applicant must prove they qualify under the Succession Act 2006 (NSW) as an eligible person (e.g., child, spouse, or dependent).

2. Assess Financial Needs: The court evaluates whether the applicant has received adequate provision for their proper maintenance, education, and advancement in life.

3. Consider the Testator’s Intentions: The will-maker’s reasoning, as evidenced by the will and other documents, is considered but not always upheld.

4. Weigh Competing Interests: Other beneficiaries and their financial needs are factored into the decision.

5. Issue a Judgment: If the court finds in favor of the applicant, it may alter the distribution of the estate.

In many cases, subpoenaed documents, such as medical records or financial statements, play a key role in proving an applicant's need or eligibility to claim part of the estate. If necessary, a party can issue a subpoena for production or for a witness to give evidence in court.

Given the complexities of family and law, having a family lawyer by your side is crucial when preparing or contesting a will.

How CM Lawyers Can Help

Navigating the intersection of testamentary freedom and moral obligations requires experienced legal guidance. Whether you want to draft a legally sound will, protect your estate from disputes, or challenge an unfair inheritance, our family lawyers near me provide expert advice tailored to your unique situation.

At CM Lawyers, we specialize in estate planning, family provision claims, and contested wills. Our team ensures your assets are distributed according to your wishes while considering legal safeguards to minimize conflicts. If you need assistance with will drafting, estate disputes, or legal advice on succession matters, our family attorney near me is ready to help. We're dedicated to protecting your interests and ensuring your legacy is honoured as intended. Talk to us today.