Why the High Court Should Revisit the Law of Wills
For more than a century, the High Court of Australia played a crucial role in shaping the law of wills, determining how testamentary documents are interpreted and applied. However, as Justice Michael Kirby noted in his foreword to Construction of Wills in Australia by David Haines, the High Court has largely withdrawn from this area of law in recent decades.
At The Wills Guy, we know how important a well-drafted will is—not just for ensuring your wishes are carried out but also for avoiding costly disputes. That’s why Justice Kirby’s call for renewed judicial focus on wills is so significant.
The High Court’s Role in Wills and Estates
Historically, the High Court was actively involved in cases concerning wills. As early as 1904, it was hearing appeals on the meaning and effect of wills, helping to resolve disputes over charitable gifts, probate duties, executors’ powers, and trust law. Some of these cases set important legal precedents that are still cited today.
However, in 1976, the introduction of special leave requirements for civil appeals changed the Court’s focus. No longer was it required to hear cases simply because they met a financial threshold. Instead, it started prioritizing constitutional and statutory law issues, leaving private law matters—such as wills—to the lower courts.
The result? A dwindling number of High Court cases dealing with the construction of wills.
Why This Matters for Everyday Australians
Wills law is not just for lawyers and judges—it affects nearly everyone. At some point, we will all have to consider how our assets will be distributed after our passing. A clear and consistent legal framework for interpreting wills is essential to:
- Ensure testators’ wishes are respected
- Provide certainty to beneficiaries
- Minimize family disputes and costly litigation
Justice Kirby highlighted a particularly striking case from his time in the NSW Court of Appeal—Harris v Ashdown (1985)—where he and Justice McHugh ruled that the word “child” in a will should not be restricted to legitimate children. This was a critical shift that acknowledged evolving social attitudes. It also demonstrated how courts must adapt long-standing legal principles to modern realities.
Should the High Court Revisit Wills Law?
Justice Kirby argues that the pendulum has swung too far, with the High Court now rarely addressing wills law. He believes the Court should re-engage with this area to:
- Clarify inconsistencies in the law
- Ensure modern family structures are reflected in legal decisions
- Re-examine whether ancient precedents are still relevant today
At The Wills Guy, we support this perspective. Many will disputes arise because of unclear legal interpretations. If the High Court revisited wills law, it could provide much-needed guidance and certainty for testators, beneficiaries, and legal practitioners alike.
What This Means for You
While we can’t control the High Court’s docket, we can draft better wills that stand the test of time. Ensuring your will is clear, legally sound, and tailored to your circumstances can prevent unnecessary disputes.
If you’re considering drafting or updating your will, let’s make sure it’s airtight—so that your wishes are followed without confusion.
Contact The Wills Guy today and get expert advice on securing your legacy.
