Ruling from the Grave part 2

In last Fridays post we discussed a Court overturning a Will makers wishes under Family provision legislation. However, as a general rule, Courts are reluctant to deny a person’s testamentary wishes.

Patrick Carroll (“Mr. Carroll”) died on 16 April 2012. He made his will on 15 December 2011 (the “Will”). His children are Jehovah’s Witnesses, and he did not approve of their adherence to that faith. In his will made on 15 December 2001 Mr. Carroll made the gifts conditional upon them attending his funeral (the “Attendance Condition”) and, becoming a Roman Catholic within three months of his death (the “Baptism Condition”). Each of the Children attended his funeral. None of them has become a Roman Catholic.

The Children were the product of a “mixed marriage” between Mr. Carroll who was a Catholic and his ex wife Lillian who was Anglican. His oldest child Anthony was baptized as an Anglican but Mr. Carroll did not raise his children as Catholic, they did not attend Mass, and were not enrolled in Catholic schools.

Mr. Carroll and his wife separated in 1959. The Children continued to live with their mother. Around the time of the separation, Lillian became a Jehovah’s Witness. The children were all subsequently baptised as Jehovah’s Witnesses and continue to remain active members of their congregation. Apart from Anthony there is no evidence that any of the Children had undergone any form of baptism prior to becoming Jehovah’s Witnesses. Mr. Carroll was very unhappy with Lillian and the Children becoming Jehovah’s Witnesses.

Each of the Children attended Mr. Carroll’s funeral, however none of the Children has become baptised into the Catholic Church, either prior to the expiration of three months after Mr. Carroll’s death or since that date.

A Court will try to uphold conditions in the Will except where they are uncertain or impossible to satisfy, are contrary to public policy, or both. The Children argued that these conditions, particularly the Baptism Condition, were uncertain, impossible or contrary to public policy. The New South Wales Supreme Court concluded that the requirement for each of them to become a Roman Catholic is a condition precedent (where an event must occur before a beneficiary can receive a gift)  which is not void for uncertainty, impossible or contrary to public policy.

None of the Children became a Roman Catholic within three months of Mr. Carroll’s death; therefore their respective shares in his estate shall be divided among the other beneficiaries in accordance with the terms of the Will.

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