Restrictions on Testamentary Freedom: Family Provision Applications to Contest a Will

Testamentary freedom is the freedom afforded to a person to decide who they want their property to go to when they die. But this discretion is not unconstrained and may be contestable. Over time, legislation has been introduced allowing a variety of persons to make a claim against the estate of the deceased, commonly referred to as “family provision claims”.

Perhaps surprisingly, this is not a new concept. During the medieval period in England, the only freedom of testation that existed was limited to rights to dispose of chattels (not land). And if a man were to die leaving a wife and child, his chattels were divided according to the “tripartite rule”, which required one third to go to the spouse and one third to the children. It was only the final third that could be freely distributed and even then this was usually given to the Church.

In New South Wales, if a person is eligible and has not been adequately provided for, they may bring a claim for provision, or further provision, from the deceased’s estate. Such claims are becoming more common because many people have accumulated larger estates than in the past, the increase in “blended” families increasing the number of children and grandchildren, and the complexity of family relationships.

If you think you have grounds to make a family law application, it is important to act as soon as possible as time limits apply.

Contact our Wills and Estate Lawyers in Sydney, NSW

Szabo & Associates Solicitors can provide expert advice and assistance if you wish to contest a Will or, alternatively, if you are an Executor of a Will and have to deal with a family provision claim. Please contact us on (02) 9158 6026 or fill in our online contact form.