Published in the Coffs Coast Advocate on 23 August 2014.
Andrew was widowed several years ago. He has three childrem, namely Karen, Paul and Robert. Andrew and Robert are both Catholic, but Andrew’s great dissappointment, Karen and Paul do not subscribe to Catholic faith.
When Andrew dies, Karen and Paul discover that pursuant to the terms of Andrew’s will, for them to receive their share of theirfather’s estate, they must become Roman Catholics within three months of their father’s estate.
Karen and Paul seek legal advice. Their solicitor advises them that the will contains a “condition precedent” and that without an order from the court, they cannot receive their share of the estate unless they are baptised within three months of their late father’s death.
Karen and Paul are appalled by this and they instruct the solicitor to seek an order from the court that the condition is void. They advance an argument that “no-one should be subject to coercion that would impair their freedom to adopt a religion or belief of their choice”.
The court ultimately finds that the clause is not “void for uncertainty”, is not “impossible” and to Karen and Paul’s disbelief, is not “contrary to public policy”.
The court states that it is bound by a High Court decision that previously upheld the validity of a clause requiring a beneficiary to renounce the Roman Catholic religion.
The court also stated that each person has the freedom to dispose of their “worldly goods to whomever and however they please, including upon conditions”.
By the time the court had heard the matter, the three months had expired and the court ruled that the gifts to Karen and Paul had failed. The result being that Robert receives the whole of Andrew’s estate.
Fortunately for Karen and Paul, their solicitor pleaded an alternative action, being a “family provision” claim against their late father’s estate.
In considering this alternative application, the court examined Karen and Paul’s relationship with their father and examined their financial circumstances and future needs. The court ultimately finds that “adequate provision” had not been made for them and makes an order in their favour.
