Statutory wills and testamentary freedom: imagining the testator's intention in Anglo-Australian law

Testamentary capacity is the defining precept for testamentary freedom; testamentary freedom is at the heart of how we balance concepts of property and the duty towards, and expectations of, family in law. The common law has allowed increasing scope for the exercise of testamentary freedom and the threshold for it is the definition of capacity. Until the creation of `statutory wills'—the ability to make a will for a person under some statutorily authorised scheme — the testator was either: the actual testator, vested with a great moral responsibility in relation to will-making; the default testator in the form of intestate schemes of distribution; or, since the early twentieth century, the court, as morally reconstituted testator, in the exercise of its jurisdiction under family provision legislation. Now there is a new character on the scene: the imagined testator, through the guise of statutory wills. This article examines statutory wills in their broader context and explores some of the challenges they pose in the theoretical landscape of will-making in the common law.