When it comes to writing a Will, many people assume they have complete freedom to decide who inherits from their estate. However, this freedom is not absolute.
In Australia, the principle of testamentary freedom allows individuals to choose how their assets are distributed after death (by making a valid Will). However, the law recognises a moral duty or obligation to provide for certain people, including spouses, children, and dependants. Understanding how testamentary freedom, testamentary capacity and moral obligation interact is important, as these have been the cause of many estate disputes.
What is Testamentary Freedom?
Testamentary freedom refers to the right a person has to decide how their property and assets will be distributed after their death. However, Australian law places limits on testamentary freedom through family provision legislation. These laws allow certain people, such as a spouse, child, or dependent, to challenge a will if they believe they were not adequately provided for. This is possibly the most common type of inheritance dispute and is referred to as a ‘Family Provision Claim’. In such dispute, if the Court finds that the Will does not make proper provision for the applicant’s maintenance, education, or advancement in life, it can order that they receive a greater share of the estate.
What is Testamentary Capacity?
Testamentary capacity refers to a person’s ability to make a valid Will. The legal ‘test’ for testamentary capacity is a long established legal principle, established in Banks v Goodfellow (1870) LR 5 QB 549.
To have ‘testamentary capacity’ you must:
- Understand the nature and effect of making a Will (including what a Will is, and what it does)
- Know what is in your ‘estate’ including rough values of your assets and liabilities etc
- Appreciate the moral claims of those who might expect to benefit from your estate
- Be free from delusions that would affect how you leave your estate
Determining whether someone has testamentary capacity is not always straightforward – as it does not mean that they must be completely healthy or free from conditions which may impact their mental capacity. Further, diagnosis of a condition such as dementia does not automatically mean a person does not have ‘testamentary capacity’. Capacity is decision specific, and so, if someone meets the above test (regardless of any diagnosis or condition they may have) they have capacity to make a valid Will. If a Will is made by someone who lacks such testamentary capacity and does not meet one or more points of the Banks v Goodfellow, the Will may be challenged and overturned by the Court.
The Moral Duty to Provide for Family Members
The ‘moral duty to provide’ refers to the idea that, even though a person has the legal right to leave their estate to whomever they choose, they also have a responsibility to make proper provision for certain people after their death. This recognises that certain relationships naturally give rise to expectations of support, and to make ‘adequate provision’ for someone in their Will. For example, a parent is generally seen to have a moral duty to provide for their children in their Will, especially if those children are in financial need or were dependent on them.
How Moral Duty Influences Family Provision Claims
If someone has been left out of a Will or receives a lesser share than expected, they may contest the Will by bringing a ‘Family Provision Claim’. The purpose is to dispute the Will, seeking more than what was given under the terms of the Will (on the basis that the deceased person had a ‘moral obligation’ to provide for them). Family provision claims differ slightly between each state and territory, as each has slightly different laws on who is eligible to bring a claim, how long they have to do so, and what factors a Court would consider in deciding on such dispute.
Who Can Bring a Family Provision Claim? (ACT and NSW Eligibility)
The below outlines the eligibility to bring such claim in the Australian Capital Territory and in New South Wales:
| Australian Capital Territory (Per section 7 of the Family Provision Act 1969) |
New South Wales (Per section 57 of Succession Act 2006) |
|---|---|
|
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However, just because a person is ‘eligible’ does not mean that the Court automatically grants them more from the Estate.
How Courts Assess Moral Duty in Family Provision Matters
The Court would consider the deceased’s ‘moral obligation’ to provide for the person, and whether the person bringing the claim needs further provision for their maintenance, education and advancement in life. In making this decision, a Court considers various factors including:
- The nature of the relationship between the person disputing the Will and the deceased
- The financial circumstances, including earning capacity, of the person disputing the Will
- The financial circumstances, including earning capacity, of other beneficiaries
- Any physical, intellectual or mental disability of any of the beneficiaries
- The financial and non-financial contributions and support provided by the person disputing the Will, or other family members, to the deceased person
- The reliance of the person disputing the Will or other family members on the deceased person, either financial or non-financially
- Any other matters the Court considers relevant.
Case Study: Pilatos v Whillier [2025] NSWSC 1221
In a recent case before the New South Wales Supreme Court, a daughter disputed her father’s estate and sought Court orders that she receive a greater amount that left for her in his Will. Her father’s Will left 50% of his estate to his eldest daughter, 15% each to his other two daughters and 20% to a friend (who is also the executor of his estate). In his Will, her father noted that two of his children has “chosen to be estranged” from him for many years.
In this dispute the Court considered a variety of factors, including:
- The daughter’s relationship with her father, including an altercation in 2010 and lack of contact for 10+ years
- The deceased’s relationship with his other children and friends
- The deceased’s will-making and testamentary intentions
- The credibility and reliability of evidence given, and the daughter’s failure to call certain witnesses
- The daughter’s living circumstances, mental health, employment and financial situation
- The competing circumstances of other beneficiaries
While the Court accepted that the father had a “moral duty” to make “some” provision for her, it found that the 15% he left to her in his final Will was sufficient. Accordingly, the Court dismissed her claim for further provision from his estate. The Court also ordered that the daughter pay some of the Executor’s legal costs in defending the estate in this dispute (on top of her own legal costs).
Case Study: Chalik v Chalik [2025] NSWCA 136
In 2024, the New South Wales Supreme Court heard a dispute between two brothers as to their mother’s estate. The last Will (made in 2013) left the entire estate to one of the sons. An earlier Will (made in 1998) left the estate equally between the two children. The excluded son argued that his mother did not have testamentary capacity at the time the 2013 Will was made and did not know or approve the contents of that Will. There was substantial evidence to support his argument, and to show that she was experiencing significant cognitive impairment. The Court concluded that the mother did not have testamentary capacity when she made the 2013 Will, and that it was therefore invalid. As such, the estate is instead to be divided equally between the two brothers (per the 1998 Will). An appeal of this decision was heard by the New South Wales Court of Appeal this year, however, this appeal was dismissed.
Considering an Estate Dispute? When to Seek Legal Advice
If you are considering disputing an estate, you should seek legal advice as soon as possible. Whether you believe you have been unfairly left out of a Will, or you are an executor needing to defend a Will, MV Law’s Wills and Estate Lawyers can help you.
MV Law Canberra
Ph: (02) 6279 4444
Email: info@mvlaw.com.au