Duhaime's Law Dictionary


Testamentary Freedom Definition:

The freedom of individuals to dispose of their property upon death as they see fit.

Related Terms: Freedom of Contract, Dower

Testamentary freedom is a principle of the common law as it was a feature of the Roman law. It is closely related to the concept of freedom of contract.

"Freedom is not," wrote English philosopher John Locke, "a liberty for every man to do what he lists but a liberty to dispose and order, as he lists, his person, actions, possessions and his whole property, within the allowance of those laws under which he is; and therein not subject to the arbitrary will of another, but freely to follow his own."

There have been several expressions of the common law principle of testamentary freedom but few as direct or delightful as this from the 1956 "Girard Will Case":

"Respected men and women, as well as eccentric people, sometimes make sound and sometimes eccentric wills. Courts, heirs and excluded beneficiaries often wish they could change or delete clear and plain and specific language, or rewrite a will to expand or change the testator's bounty in order to conform to what they believe would be fairer or wiser, or to conform to what they think the testator would have said if he had foreseen the existing facts and circumstances. But that is not and never has been the law of Pennsylvania!...

"[I]t is and always has been the law of Pennsylvania that every individual may leave his property by will to any person, or to any charity, or for any lawful purpose he desires, unless he lacked mental capacity, or the will was obtained by forgery or fraud or undue influence, or was the product of a so-called insane delusion.

"While it is difficult for many people to understand how or why a man is permitted to make a strange or unusual or an eccentric bequest, especially if he has children or close relatives living, we must remember that under the law of Pennsylvania, a man's prejudices are a part of his liberty. He has a right to the control of his property while living, and may bestow it as he sees fit at his death."1

testamentary freedom leads to famous willsIn another, more recent iteration:

"While I cannot say that (the testatrix') choice of beneficiaries was the better or fairer choice, I must confirm her absolute right to choose her beneficiaries without accountability to anyone, along with her right to change her mind as many times as she pleased so long as she had the capacity to execute a valid will."2

There are some statutory limits in many jurisdictions especially when a Will fails to provide for dependents of the deceased, such as children or a spouse. Still, one of the most often repeated phrases of the law is that the principle of testamentary freedom should not lightly be interfered with.

There is also a classic example often repeated in law school that a Will, in any event, cannot provide for a gift subject to some impossible task such as that the proposed beneficiary drink all the water in the Atlantic Ocean.

Nor can a Will provide that a beneficiary do something that is illegal or contrary to public policy.

Perhaps more philosophically,

"In the late 18th-early 19th century, Jeremy Bentham ... saw the father's testamentary power as providing an incentive to children. Bentham described it as a power to reward 'dutiful and meritorious conduct' and as 'an instrument of authority, confided to individuals, for the encouragement of virtue and the repression of vice in the bosom of their families'.' In other words, it was a power to reward or punish."3

"Philosophical" is an apt description of this classic statement of the law of testamentary freedom of Justice Cockburn in Banks v Goodfellow:

"Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given.... The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of the general law."

Sometimes referred to as freedom of testation or liberty of testation, most awkward if not regrettable phrases if ever there have been in law.

REFERENCES & CITATIONS:

  • Banks v Goodfellow, [1870] 5 LR QB 549
  • Duhaime.org, Duhaime's Famous and Outrageous Wills
  • In re Colton's Estate, 166 A. 521 (1934)
  • NOTE 1: Girard Will Case, 127 A. 2d 287
  • NOTE 2: Visnjak v. Jakovich, [1985] BCJ 1427
  • NOTE 3: Croucher, Rosalind F., How Free Is Free: Testamentary Freedom and the Battle between Family and Property, 37 Austl. J. Leg. Phil. 9 (2012) at page 12.

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