Hickin v Carroll & Ors (No 2) [2014] NSWSC 1059

On 6 August 2014 the Equity Division of the Supreme Court of New South Wales held that testamentary conditions upon restraint of religion are not void per se on the grounds of public policy.

The late Patrick Carroll (Mr Carroll) died on 16 April 2012 having made his last will on 15 December 2011 (the Will). Mr Carroll was survived by his four children Robyn, Pauline, Anthony and Susan (the Children). The Children were the children of Mr Carroll’s marriage to his former wife from whom he separated in 1959. Mr Carroll did not take any steps to bring up the Children in the Roman Catholic faith, neither he nor they attending Roman Catholic Church services.

Around the time of separation, Mr Carroll’s former wife was baptised as a Jehovah’s Witness and her conversion to that faith enraged Mr Carroll, who for the rest of his life continued to express his very strong objection to both her and the Childrens’ membership of that faith. All of the Children were baptised as Jehovah’s Witnesses in the 1960s and all of them remained active in their congregations.

Mr Carroll’s Will made gifts to the Children. However the gifts were “subject to and dependent upon them becoming baptised into the Catholic Church within a period of 3 months from the date of my death and such gifts are also subject to and dependent (sic) my children attending my funeral…

The Will went on to provide that “…in the event that they should neither convert to Catholicism or attend my funeral then the share given to them under this my Will shall be void and the value thereof divided between my remaining residuary beneficiaries in the same proportions as herein set out.

Each of the Children attended Mr Carroll’s funeral but none of them became a Roman Catholic, either prior to the expiration of three months after Mr Carroll’s death or since that date. One of the children then sought relief in the nature of a declaration that these conditions attached to the gifts in Mr Carroll’s Will were void and of no effect and that the gifts were absolute gifts.

The court first satisfied itself upon how the clauses were to be construed. In particular, that the gifts were a condition precedent and the requirements were several as between the Children, rather than, collectively, and that the two conditions were:

  • becoming baptised into the Catholic Church within a period of three months of the date of my death
  • attending my funeral.

Converting to Catholicism was related back to the first condition and was not a third condition of the gifts. Even though the practicalities of complying with the condition may have been difficult for the Children within the prescribed time frame it was not impossible and the condition was not therefore void for impossibility. The Children then invited the court to consider whether the condition was against public policy.

The Children submitted that in modern Australian society of 2014, a clause such as the Baptism condition was either void per se as a matter of public policy or, if not, contemporary circumstances gave rise to a previously unrecognised principle of public policy which overcame Mr Carroll’s freedom to make the Will.

It was submitted that the condition offended public policy and was void because Mr Carroll:

  • discriminated against the Children on the grounds of their religion
  • promoted discord within the family in a way that affronted concepts of universal human rights and freedoms.

After examining the High Court authority of Cumming (which on its facts held that a restraint of religion clause was only contrary to public policy if it interfered with the parental right to bring up a child in a particular faith) that the conditions in the Will did not impinge upon the free exercise of the Children’s religion and did not compel  the  Children  to  do  anything.

If they had chosen to do so, they could have complied with the Baptism condition. Rather, they maintained their adherence to the Jehovah’s Witness faith. That choice was to be accorded every respect but it did not relieve them from the consequences of that choice or their eligibility for the gifts under the Will.

Therefore, the Baptism condition was not uncertain, impossible or contrary to public policy and that as the Children had only complied with the condition to attend the funeral that was insufficient for them to take the benefit of the gifts under the Will.