Conditionality in a will supported by Supreme court

Date: Sep 12, 2014

A recent judgment from the New South Wales Supreme Court has ruled against an attempt to challenge a will based on the conditions the document imposed on the deceased's family.

The ruling declared that imposing these conditions on family members was legal, specifically a demand that the deceased's four children convert to Catholicism in order to receive a share of the estate.

In his will, the deceased required that his four children attend his funeral and become Roman Catholics in order to receive a share of his estate. At the time, the four children were all Jehovah's Witnesses and refused to convert, although they did choose to attend the funeral.

Because of this decision, the children were excluded from the estate and decided to contest the will.

The court case hinged on two competing legal concepts - the right of the deceased to testamentary freedom and the right of his children to religious freedom.

The plaintiffs also argued that this stipulation went against public policy - any conditions imposed in a will cannot contravene the law. For example, a will containing the condition that a person will only receive their share of an estate if they commit a burglary would be illegal.

Finally, one of the children argued that, because they had already been baptised as an Anglican, they were not eligible to be baptised into the Catholic faith and therefore couldn't complete this requirement. 

In the end, the Court ruled that this condition did not contravene public policy because the four children were not forced to convert if they chose not to. For the one child who had been baptised as an Anglican, the Court ruled that there were sufficient alternatives to allow entry into the Catholic Church, removing the question of impossibility. 

While this case relates to an unsuccessful challenge to a will, it highlights the conditions under which a will might be challenged. If it had been decided that freedom of religion trumped the right to testamentary freedom, which it commonly does in other cases, the four children may have been successful. Conditions that violate public policy are also grounds to contest a will, with these conditions unlikely to be upheld by the Courts. 

This case also highlights the power that individuals have when drafting their will, making it important to have this document written clearly and with as little room for confusion as possible.

If you want to set specific conditions on your will, or have grounds to contest a will, make sure to contact a wills and estates lawyer.