deceased estate, inheritance and religion

Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors

Recently the NSW Supreme Court confirmed as valid a clause in a Will which required his children to convert to Catholicism if they wished to inherit.

Brief Facts

The deceased man and his wife separated in 1959.  Subsequently, the wife and their four children became Jehovah’s Witnesses.  The deceased strongly objected to this.

In December 2011 the deceased made a Will which gave part of his estate to his children, but only if they attended his funeral and were baptised in the Catholic Church within 3 months of his death.

The adult children all attended the testator’s funeral but did not become Catholic.

The Court Case

The children sought an orders that the conditions which the deceased had attached to the gifts in his Will were void and of no effect.

The relevant part of the deceased’s Will was as follows:

3.  TO APPLY the remainder as follows: –

(xiv) I make the following gifts of remainder to my children subject to and dependent upon them becoming baptised into the Catholic Church within a period of three months from the date of my death and such gifts are also subject to and dependent (sic) my children attending my funeral: –


(b) PAULINE (sic) JUNE CARROLL – 8.44%


(d) SUSAN MARGARET KLAH (sic) 10.56%

in (sic) 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.

4.  I DIRECT that if any of the said CAROLYN MARGARET HICKEN (sic), SEAN LYONS, PAULINE (sic) JUNE CARROLL, ANTHONY JOHN CARROLL or SUSAN MARGARET KLAH (sic) should predecease me then to vest the share under this my Will that they would otherwise have taken had they survived me in such of their children as shall survive me and attain the age of twenty-one years and if more than one as tenants in common in equal shares.

It was argued that:

  • The condition was uncertain because:
    • the deceased had not specified which Catholic church or community;
    • it was unclear whether all the children had to comply with the condition before any of them could inherit or whether each gift was independent of the others;
    • it was unclear whether compliance with one condition would be sufficient;
    • conversion is not the same as baptism, so it was unclear whether these were 2 separate conditions;
  • The condition was impossible because one of the children had been baptised Anglican and thus could not be “re-baptised” and three months was not enough time for the other children to be baptised;
  • The condition was contrary to public policy as discriminating against the children on the grounds of their religion, promoted discord within the family and offended public policy.

His Honour Justice Kunc dismissed all of these arguments.  He determined that:

  • The condition was not uncertain. There was no reason to think that the deceased intended anything other than the ordinary meaning of Catholic. It was clear from the words of the Will that the gift to each child was separate, that the deceased required that the children comply with both conditions – attend his faunal and become Catholic – before inheriting.  It was also clear from the words of the Will that the deceased intended 2 conditions only.
  • The condition was not impossible. The evidence established that it was possible to be baptised within 3 months and regarding the child who had already been baptised, there were other steps he could have taken in that time to adopt the Catholic faith.
  • The condition was not void as contrary to public policy because there is no legislation which forbid religious discrimination in a Will, the fact that family disharmony may arise out of the terms of a Will is no reason to invalidate a Will and there is no other public policy which would restrict the deceased’s testamentary freedom.

Therefore, the Court held that the condition in the Will was valid and because the children had not become Catholic, they could not inherit.

The full decision can be read here.

Implications for WA

Although this was not a decision of a WA Court, the outcome of a similar case in WA may have the same result.  However, this decision does not mean that any clause in a Will is valid.

This decision demonstrates the unfortunate effects of family disharmony and the importance of obtaining expert advice when preparing your Will.

If you need a Will or would like to review your current Will, contact Oldfield Legal today.

If you feel that you have been left out of a Will or would like to consider a family provision claim, contact us today.


The content of this article is intended to provide a general guide to the subject matter.  Specialist legal advice should be sought about your specific circumstances.

photo credit: Muffet via photopin cc

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