Supreme Court New South Wales

• Medium Neutral Citation: Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors (No 2) [2014] NSWSC 1059
• Hearing dates: 11 November 2013, 21 March 2014
• Decision date: 06 August 2014
• Jurisdiction: Equity Division
• Before: Kunc J

Decision

Amended summons dismissed

• Catchwords: WILLS, PROBATE AND ADMINISTRATION - Construction - Gift conditional on beneficiaries converting to Roman Catholicism within three months of testator's death - Whether condition precedent or subsequent - Whether uncertain, impossible or against public policy; PRECEDENTS - Binding effect of - Lower court bound even if considers underlying public policy has changed; WORDS AND PHRASES - "baptised", "convert"
• Legislation Cited: Anti-Discrimination Act 1977 (NSW); Conveyancing Act 1919 (NSW); Race Relations Act 1968 (UK); Racial Discrimination Act 1975 (Cth); Succession Act 2006 (NSW)
• Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656; Blathwayt v Baron Cawley [1976] AC 397; Bondi Beach Astra Retirement Village v Gora [2011] NSWCA 396; (2011) 82 NSWLR 665,; Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors [2013] NSWSC 1686; Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1; Church Property Trustees, Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394; Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449; Clavering v Ellison (1859) 7 HLC 707; Clayton v Ramsden [1943] AC 320; Edgerton v Earl of Bronlow (1853) 4 HL Cas 484; (1853) 10 ER 359; Fell v Fell [1922] HCA 55; (1922) 31 CLR 268; Horrigan v Horrigan [1904] 1 IR 29; Hyde v Holland [2003] NSWSC 733; In Re Allen Deceased; Faith v Allen [1953] 1 Ch 810; In re Borwick; Borwick v Borwick [1933] 1 Ch 657; In re Cuming; Nicholls v Public Trustee (South Australia) [1945] HCA 32; (1945) 72 CLR 86; In Re Evans; Hewitt v Edwards [1940] Ch 629; In re Samuel; Jacobs v Ramdsen [1942] Ch 1; Kostiga v Ukrainian Council of New South Wales Incorporated [2013] NSWSC 222; Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR; McCausland v Young [1949] NI 49; Miliangos v George Frank (Textiles) Limited [1976] AC 443; Miller v Miller (1995) 16 ACSR 73; Perpetual Trustees Executors and Agency Company of Tasmania Limited v Walker [1953] HCA 21; (1953) 90 CLR 270; Re Emson; Grain v Grain (1905) 93 LT 104; Seidler v Schallhofer [1982] 2 NSWLR 80; Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 80 NSWLR 226; Taylor v Burgess [2002] NSWSC 676; (2002) 29 FamLR 167; Re Williams, deceased; Queensland Trustees Ltd v Williams [1950] St R Qd 148; The Trustees of Church Property of the Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394; Watson v Watson [1999] NSWSC 325; In re Whiting, deceased; Whiting v The Equity Trustees Executors and Agency Co Ltd [1957] VR 400
• Texts Cited: P Butt "Testamentary Conditions in Restraint of Religion" (1977) 8 Syd Law Rev 400; C Evans "Legal Protection of Religious Freedom in Australia", The Federation Press, 2012; S Grattan and H Conway, "Testamentary Conditions in Restraint of Religion in the 21st Century: an Anglo-Canadian Perspective" (2005) 50 McGill Law Journal 511; Macquarie Dictionary, 6th edn, Macquarie Dictionary Publishers Pty Ltd, 2013; Williams on Wills (9th Edn), Lexis Nexis Butterworths, 2008
• Category: Principal judgment
• Parties: Carolyn Margaret Hickin (Plaintiff); Robyn Patricia Lyons (First Defendant); Paulene June Carroll (Second Defendant); Anthony John Carroll (Third Defendant); Susan Margaret Klar (Fourth Defendant)
• Representation: Counsel: Mr P.P. O'Loughlin (Plaintiff); Mr M. Gorrick and Ms J. Walker (First to Fourth Defendants); Mr A.C. Scotting (Fifth Defendant); Solicitors: Warren McKeon Dickson (Plaintiff); L. Rundle & Co (Defendants); Teece Hodgson & Ward (Fifth Defendant)
• File Number(s): 2013/143800
• Publication restriction: No

Judgment

Summary

1 The late Patrick Carroll ("Mr Carroll") died on 16 April 2012. He made his will on 15 December 2011 (the "Will"). The issue in these proceedings is the proper construction and effect of gifts in the Will to Mr Carroll's children of portions of his residuary estate made conditional upon them becoming Roman Catholics within three months of his death.

2 Mr Carroll appointed the plaintiff (his step-daughter, Carolyn Margaret Hickin) and the fourth defendant (his daughter, Susan Margaret Klar) as executrices and trustees of the Will. Without meaning any disrespect, in these reasons I shall refer to them and other family members by their given names. Probate of the Will was granted to Carolyn and Susan on 26 September 2012.

3 Susan and the first to third defendants - Robyn, Paulene and Anthony - are Mr Carroll's children. The fifth defendant, Adrian, is one of Mr Carroll's step-sons. For reasons set out in paragraphs [10] to [13] below, Adrian was joined to these proceedings to represent the interests of the other residuary beneficiaries under the Will.

4 Robyn, Paulene, Anthony and Susan (the "Children") are Jehovah's Witnesses. Mr Carroll did not approve of their adherence to that faith. He made the gifts of each of their shares of the residue of his estate conditional upon them attending his funeral and, putting it generally, becoming a Roman Catholic within three months of his death. Each of them attended his funeral. None of them has become a Roman Catholic.

5 The Court has concluded that the requirement for each of them to become a Roman Catholic is a condition precedent which is not void for uncertainty, impossible or contrary to public policy. Since none of them became a Roman Catholic within three months of Mr Carroll's death, what would otherwise have been their respective shares in his residuary estate fall to be divided among the other residuary beneficiaries named in the Will in accordance with its terms.

The Will

6 The structure of the Will is straightforward. After the calling in and conversion of the assets of the estate and payment of all debts and expenses, there is a specific pecuniary legacy of $5,000 to a named individual.

7 Clause 3 of the Will is divided into 14 sub-clauses. Sub-clauses (i) to (xiii) divide 64.12% of the remainder of the estate after payment of the specific pecuniary legacy between 13 named relatives in specified proportions (the "other residuary beneficiaries"). Clauses 3(xiv) (the "Gifts") and 4 deal with the remaining balance of 35.88% of the residue:

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: -

(a) ROBYN PATRICIA LYONS - 8.44%

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

(c) ANTHONY JOHN 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.

8 In these reasons I shall refer to the condition "becoming baptised into the Catholic Church within a period of three months from the date of my death" as the "Baptism Condition" and to the condition "attending my funeral" as the "Attendance Condition". I shall also refer to the last four lines of the Gifts (commencing "in the event that") as the "Alternative Gifts".

The history of these proceedings

9 Before turning to the facts and issues in this case, it is necessary briefly to set out its procedural history.

10 The proceedings first came on for hearing before me on 11 November 2013. At that time the only parties to the proceedings were Carolyn and the Children. The other residuary beneficiaries were not represented, although they were on notice of the proceedings. As the hearing progressed it became apparent there were arguments which could properly be put in support of the validity of the Gifts such that, in the events which had happened, the Childrens' portions would go to the other residuary beneficiaries. However, none of the parties then before me were contending for that result. It was apparent that, up to that point, the proceedings had been irregular for want of a contradictor.

11 After further consultation with the parties represented before me, on 14 November 2013 I made orders for the hearing of the proceedings to be re-opened for further argument and for the other residuary beneficiaries to be notified of what had occurred. My reasons for those orders and the history of the proceedings up to that point are set out in my judgment in Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors [2013] NSWSC 1686.

12 At a further directions hearing on 20 December 2013 I made orders granting leave for Adrian to be joined as fifth defendant in the proceedings. Adrian is one of the other residuary beneficiaries. All the existing parties understood and accepted that the point of Adrian's joinder was for him to put a case that would apply to all of that group. I also made orders for the filing of further evidence and submissions, including on behalf of Adrian.

13 The reconstituted hearing continued and concluded on 21 March 2014. On that occasion the representation of the original parties continued as before: Mr P.P. O'Loughlin of Counsel appeared for Carolyn and Mr M. Gorrick of Counsel appeared with Ms J. Walker of Counsel for the Children. On that day Mr A.C. Scotting of Counsel appeared for Adrian.

14 Issues raised at the reconstituted hearing required further written submissions which were ultimately completed on 14 April 2014.

The facts

15 The facts are uncontroversial and I find them to be as follows.

16 The Children are the children of Mr Carroll's marriage to his former wife Lillian June Carroll. The marriage was one referred to at the time as a "mixed marriage" where Mr Carroll was the Roman Catholic partner and Lillian was an Anglican.

17 On 24 October 1951 Anthony was baptised into the Anglican Church at St Luke's, Junee in the Anglican Diocese of Canberra and Goulburn.

18 Mr Carroll did not take any steps to bring up the Children in the Roman Catholic faith. Neither he nor they attended Roman Catholic church services. The Children were enrolled in public rather than Roman Catholic schools.

19 Mr Carroll and Lillian separated in 1959. The Children continued living with their mother.

20 Around the time of the separation, Lillian was baptised as a Jehovah's Witness. Her conversion to that faith enraged Mr Carroll, who for the rest of his life continued to express his very strong objections to Lillian's and the Childrens' membership of that faith.

21 Robyn was baptised as a Jehovah's Witness on 28 April 1962 and remains an active member of her congregation. There is no evidence that she had undergone any form of baptism prior to that date.

22 Paulene was baptised as a Jehovah's Witness on 1 March 1964 and remains an active member of her congregation. There is no evidence that she had undergone any form of baptism prior to that date.

23 Anthony was baptised as a Jehovah's Witness in 1968 and remains active in his congregation. As is recorded in paragraph [17] above, he had previously been baptised into the Anglican Church.

24 Susan was baptised as a Jehovah's Witness on 1 October 1969 and remains active in her congregation. There is no evidence that she had undergone any form of baptism prior to that date.

25 Mr Carroll made the Will on 15 December 2011.

26 Mr Carroll died on 16 April 2012.

27 Each of the Children attended Mr Carroll's funeral.

28 None of the Children has become a Roman Catholic, either prior to the expiration of three months after Mr Carroll's death or since that date.

29 By an amended summons filed on 16 August 2013, Carolyn seeks this relief:

1. A Declaration that the conditions attached to the gifts in clause 3(xiv) of the last will of the late Patrick Carroll made on 15 December 2011 are void and of no effect to the intent that the gifts in sub clauses (a), (b), (c) and (d) of clause 3(xiv) of the will are absolute gifts.

2. An order that the costs of the plaintiff be paid out of the estate of the Deceased on the indemnity basis.

The expert evidence

30 As with the facts, there was ultimately no controversy between the parties as to the applicable features of Roman Catholic doctrine and practice. Evidence was adduced of information provided by the Chancellor's Office of the Roman Catholic Archdiocese of Sydney. In addition, Carolyn tendered reports from Dr Christopher Geraghty. Dr Geraghty holds a doctoral degree in theology conferred by the Catholic Institute of Sydney and a master's degree from the Institut Catholique in Paris, where he specialised in sacramental theology and liturgical studies. He was a priest of the Roman Catholic Archdiocese of Sydney for 15 years and taught sacramental theology and liturgy for 10 years. While no party initially wished to cross-examine Dr Geraghty, he was made available to give evidence and I accepted the parties' invitation to ask him questions to clarify matters arising from my reading of his reports. That process provoked some further questions from the parties.

31 Based solely on the material from the Chancellor's Office and Dr Geraghty's written and oral evidence I make the following findings concerning Roman Catholic doctrine and practice.

32 Baptism is the usual means by which a person becomes a member of the Roman Catholic Church.

33 The pastor of the place where the baptism is conferred must record the name of the baptised and other details in a Baptismal Register.

34 There is no minimum time before which a person who wishes to receive the Roman Catholic sacrament of Baptism can do so after they have expressed the desire to be baptised.

35 Where a person has been baptised into the Anglican Church, that person cannot be "rebaptised" by the Roman Catholic Church because the latter recognises the validity of baptisms in some other Christian communities such as the Anglican Church.

36 Baptism as a Jehovah's Witness is not a form of baptism recognised as a valid Christian baptism by the Roman Catholic Church. Therefore the Roman Catholic Church can baptise a Jehovah's Witness (i.e. a person who has been baptised according to the rites of the Jehovah's Witnesses) who wishes to become a Roman Catholic.

37 A non-Catholic adult generally becomes a member of the Roman Catholic Church by participating in the Rite of Christian Initiation of Adults ("RCIA") which involves a period of study, reflection, prayer and participation in various ceremonies culminating in the reception of the Roman Catholic sacraments of Baptism (if that person has not previously undergone a baptism valid according to the Roman Catholic Church), Confirmation and Eucharist (also known as Communion) at the Easter Vigil Mass. That process generally takes many months, perhaps a year or more, but there is no specified time period.

38 However, a non-Catholic adult can receive the Roman Catholic sacraments of Baptism (if necessary), Confirmation and Eucharist outside the context of the formal RCIA process and so be validly initiated as a member of the Roman Catholic Church in a period of less than three months from when that person first expressed the wish to become a Roman Catholic.

The issues

39 The way in which the parties presented their arguments requires the resolution of the following questions:

(1) What is the proper construction of the Gifts?

(2) Are the Baptism and Attendance Conditions to be classified as conditions precedent or subsequent?

(3) Is the Baptism Condition void for uncertainty?

(4) Is the Baptism Condition impossible?

(5) Are the Baptism and Attendance Conditions void as contrary to public policy?

Construction of the Gifts - legal principles

40 The parties were not in dispute as to the applicable principles governing the construction of the Gifts. I respectfully adopt the well known summary by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 273-276 (citations omitted):

1. Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used (Lord Cranworth in Abbott v. Middleton; Lord Wensleydale in the same case).

2. The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it (Lord Halsbury L.C. in Leader v. Duffey; Ward v. Brown; Buckle L.J. in Kirby-Smith v. Parnell).

3. If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared (Towns v. Wentworth); Hawkins on Wills, 2nd ed., at p. 6).

4. An inference cannot be made "that did not necessarily result from all the will taken together" (Sir R. P. Arden M.R. in Upton v. Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James L.J. in Crook v. Hill).

5. We cannot give effect to any intention which is not expressed or plainly implied in the language of" the "will" (Lord Watson in Scalé v. Rawlins). You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication (Lord Brougham L.C. in Langston v. Langston).

6. If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made (Knight Bruce L.J. in Pride v. Fooks).

7. When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there, as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy (Page Wood V.C. in Hope v. Potter).

8. There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense ...), that you should rather lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention (Lord Brougham L.C. in Langston v. Langston).

9. If on reading the will you can see some mistake must have happened, that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself (Langston v. Langston).

10. The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills (Lord Shaw in Lightfoot v. Maybery). In ascertaining the intention, I ought to a certain extent-we all know what the expression means-to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary (Buckley L.J. in Kirby-Smith v. Parnell).

41 While their relative antiquity has not dimmed the applicability of Isaacs J's observations, I also respectfully adopt the more recent summary of Austin J in Hyde v Holland [2003] NSWSC 733, particularly for its helpful exposition of what is sometimes referred to as the "armchair" principle:

24 The Court's task in construing a will was well described by Blackburn J in Allgood v Blake (1873) 8 LR Ex 160, at 162-4. His Lordship said:"A general rule is that in construing a Will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the Will, and then to decide what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words....

No doubt in many cases the testator has for the moment forgotten or overlooked material facts and circumstances which he well knew. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the Court is to construe the Will as made by the testator, not to make a Will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has, by blunder, expressed what he did not mean....

We apprehend that no precise line can be drawn, but that the Court must, in each case, apply the admitted rules to the case in hand; not deviating from the literal sense of the words without sufficient reason, or more than is justified; yet not adhering slavishly to them, when to do so would obviously defeat the intention which may be collected from the whole Will."

25 A court of construction cannot omit or insert words, and will not admit evidence showing that different words were intended to be used in the will: Tatham v Huxtable [1950] HCA 56; (1950) 81 CLR 639, at 645, 651. Words are usually given their ordinary grammatical meaning, but this depends on the context: Towns v Wentworth [1858] EngR 371; (1858) 11 Moo PC 526 [14 ER 794]; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327.

26 Pursuant to the principle of construction sometimes called the "armchair" principle, extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator's situation at the time of the will and the context in which he expressed his testamentary intention: Boyes v Cook (1880) 14 Ch D 53, at 56; Day v Collins [1925] NZLR 280; Harris v Ashdown (1985) 3 NSWLR 193.

27 Counsel for both defendants referred me to the well-known presumption against an intestacy, by which a court will lean against finding an intestacy and will not presume that the testator meant to die partially intestate if, on a fair construction, there is reason for saying the contrary: Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, at 275-6; Kirby-Smith v Parnell [1903] 1 Ch 483, 489-490. Consequently the Court will lean to avoid the finding that a gifts is uncertain and void, and where there is only a slight reason to favour one ambiguous construction over another, the Court will do so if that construction avoids intestacy, on the basis that it is closer to the testator's intention than intestacy: Re Ansell; Wardlaw v Ekblade [1947] Tas SR 36; Gerhardy v South Australian Auxiliary to British and Foreign Bible Society Inc (1982) 30 SASR 12, at 26.

28 However, the presumption against intestacy is not a strong presumption, and the Court should not "lean too heavily against a construction that produces an intestacy; and certainly cannot, in order to avoid that result, misconstrue the language of the instrument": Re Wragg Dec'd [1959] 1 WLR 922, at 929 per Lord Evershed MR; Marks v Pope [2001] NSWSC 105 (5 March 2001), paragraph [17] per Young J. In Re Wragg a professionally drafted will provided that the trustees were to hold the estate on trust to pay a weekly sum to the widow, and another weekly sum to the deceased's brother, and "after the death of" the widow, and after setting aside a sufficient part of the estate to pay the brother's annuity, to divide the residuary estate into seven parts. Although Lord Evershed acknowledged a "natural inclination against a result that means that the draftsman left a lacuna in his draft", the Court held that, on the proper construction of the will, the surplus income was not disposed of during the wife's life.

Construction of the Gifts - the parties' arguments

42 Carolyn's approach to the construction of the Gifts drew attention to matters which she said demonstrated that the meaning of the Gifts was very uncertain. At this point of the argument I understood her submissions to be that the uncertainty was so great that the Gifts could not be given a sensible construction.

43 The intrusion of the concept of uncertainty at the point of construction was discussed by the then Mr P. Butt in his still very relevant article "Testamentary Conditions in Restraint of Religion" (1977) 8(2) Syd Law Rev 400 at 401-402 (emphasis in original) (citations omitted):

It may be of assistance to look first at what the courts mean when they hold a condition to be "uncertain". There would appear, both from the point of logic and a consideration of the authorities, there are two ways in which a clause may fail for uncertainty: it may, as a matter of semantics be incapable of interpretation, or, being capable of interpretation, leave doubt as to its application to the facts of the case. In other words, a distinction may be drawn between uncertainty of expression and uncertainty of operation.

A condition does not fail for uncertainty of expression simply because it lacks clarity of expression. In such cases it is the duty of the court to endeavour to construe the testator's meaning in the light of the ordinary canons of construction. The mere fact that the wording is so unclear as to require a reference to the court does not render the condition void for uncertainty. It is only when a meaning cannot be properly ascribed to the language used by the testator that the condition fails for uncertainty of expression.

Having ascertained the meaning of the words used by the testator, the condition may nevertheless fail because of uncertainty of operation: it may not be possible to ascertain how the condition is to be applied to the facts of the case. As in the case of uncertainty of expression, a condition is not void for uncertainty of operation merely because there is some difficulty in ascertaining its application to the facts: the Court's task is to endeavour to assign efficacy to it, and it is only when no such efficacy can be given that the condition is uncertain.

44 Carolyn's submissions may be summarised as;

(1) The Gifts were too uncertain to be construed because Mr Carroll seems to have assumed that "becoming baptised into the Catholic Church" and "convert to Catholicism" were synonymous so that baptism and conversion to Catholicism were one and the same. This was not the case.

(2) The reference to "Catholicism" was vague.

(3) The use of the word "them" in "upon them becoming baptised" raised the further ambiguity as to whether all of the Children had to comply before any of them could receive their portions.

45 In addition to adopting Carolyn's submissions, the Children pointed to these additional difficulties of construing clause 3(xiv) of the Will:

(1) It was unclear whether two or three conditions had to be satisfied: while the attendance by them at Mr Carroll's funeral was clear, it was unclear whether the references to "becoming baptised" and "convert to Catholicism" were two ways of stipulating the same condition or were in fact different conditions.

(2) The use of "neither" with "or" in the expression "in the event that they should neither convert to Catholicism or attend my funeral" in the Alternative Gifts made it unclear as to whether the Alternative Gifts were only enlivened if both conditions were not satisfied or if it was enough that only one of the conditions was not satisfied.

46 Adrian submitted:

(1) There could be no doubt that the Gifts, on their proper construction, consisted of four separate gifts, being to each of the Children. This was the natural way of reading the clause. If support were needed for reading the plural as the singular, it is provided by s 181(1)(b) of the Conveyancing Act 1919 (NSW) to the effect that in wills executed after 1 January 1931 the plural includes the singular and vice versa (unless a contrary intention appears). There was no contrary intention in the Will.

(2) There were only two conditions in the Gifts: the Baptism Condition and the Attendance Condition.

(3) "Baptism" and "conversion" were used by the testator synonymously. Those words were to be given their ordinary meaning in the context in which they were used. There was no suggestion that Mr Carroll was using them in a technical or theological way and they should not be interpreted as such.

(4) The use of "neither" with "or" did not raise an insuperable barrier to construction. Construing the clause as a whole, it was plain that the words of the clause should be read as "in the event that they should either not convert to Catholicism or not attend".

Construction of the Gifts - resolution

47 In approaching the task of construction, I bear in mind the principles set out in paragraphs [40] and [41] above. Applying those principles I understand the Court's essential task is to determine Mr Carroll's intention as evidenced by the words used in the Will. Those words should be given their plain meaning but, to the extent of any ambiguity, inaccuracy or inconsistency, the Court must ascertain the meaning of the Gifts as a whole in order to give effect to Mr Carroll's intention. Extrinsic and "armchair" evidence can be relied upon as part of this task.

48 In relation to Mr Carroll's use of the words "baptised" and "convert", I propose to treat those as ordinary English words rather than as theological or canonical terms of art. There is no basis in the evidence to conclude that Mr Carroll would or could have used them in any way other than as ordinary English words. The evidence that he was not an active, practising Roman Catholic (by which I mean no disrespect) supports the conclusion that those words should be given their plain English meaning.

49 This problem is not novel and, in taking this approach, I follow that adopted by the Northern Ireland Court of Appeal in McCausland v Young [1949] NI 49. The Court was considering a forfeiture clause which contained the words "shall become a Roman Catholic or profess that he or she is of the Roman Catholic religion". It was argued that those words were so uncertain that their meaning could not be ascertained with the requisite degree of definiteness. Andrews LCJ said (at 56-57; see also per Babbington LJ at 98):

Such are the doubts and difficulties which, it was contended in argument, render clause 15 of the deed uncertain and unenforceable; and in support of these contentions the plaintiffs produced as witnesses two eminent Doctors of Divinity and authorities on the canon law, Dr. William Conway, of Maynooth, and Dr. Arthur Ryan, of The Queen's University of Belfast, the submission being that the issues of fact raised in the forfeiture clause could only be determined by the law and practice of the Roman Catholic Church. They were, indeed, able exponents of the case which they were presenting; but, having given it my most careful consideration, I am forced to the conclusion that their evidence is not of any real assistance to the plaintiffs' case. In expressing this opinion I am not unmindful of the admission made by Dr Ryan to the learned Attorney-General in cross-examination that "when you find in a document a phrase 'Roman Catholic' or 'Roman Catholic religion' it is not a phrase taken from the canon law of the Church; and in searching for a meaning you will not get any assistance from the canon law." If this be so, one naturally asks why have recourse to them or seek their aid? Why not interpret the words as, what Black J calls, "an ordinary English phrase"? Why should they not bear the meaning in which they would naturally be used by the settlor - a meaning assigned to them in ordinary every-day speech? It is evidence such as that given by Dr. Conway and Dr. Ryan which, if accepted, would be calculated, as was doubtless intended, to create doubts where in my opinion there were really none. It is the words of the settlor, not of the canonist, which we are called upon to construe; and in my opinion it would be entirely wrong of us if we were to interpret the words of the settlor by reference to criteria of the canon law with which he was in all probability quite unfamiliar. In this connection I must say that I am impressed by the words of Gavan Duffy P in In re Mckenna [1947] IR 277, that a Protestant farmer testator knew what he meant, and practically every citizen in every walk of life, be he Catholic or Protestant, knew the meaning conveyed, by the words "marry a Roman Catholic"; and the learned President added that he had only to construe the plain words used by a plain man in a sense plain to all of us. This, in my view, is common sense, which I am not prepared to hold in the present case to be in conflict with any settled principles of law.

50 I will now turn to the several issues of construction raised by the parties. For the reasons which follow I generally accept the conclusions advanced on behalf of Adrian. I do not accept Carolyn's and the Childrens' submission that the Will cannot be construed to yield a sensible meaning.

51 Although already set out in paragraph [7] above I again set out here for convenience clauses 3(xiv) and 4 of the Will:

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: -

(a) ROBYN PATRICIA LYONS - 8.44%

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

(c) ANTHONY JOHN 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.

"Catholicism"?

52 Despite Carolyn's faint submission that the reference in the Gifts to "Catholicism" was vague, the case was conducted by all the parties, correctly, on the basis that the reference to the "Catholic Church" and "Catholicism" meant the Roman Catholic Church. There is absolutely no reason to conclude that Mr Carroll would have been referring to any one of the number of different churches or communities, such as the Coptic, Syriac or Armenian churches, all of which Dr Geraghty informed the Court belonged to the Catholic tradition, are in communion with the Pope in Rome and form part of the Catholic Church generally.

Must all of the Children comply?

53 Because none of the Children have renounced the Jehovah's Witness faith, it is not necessary for me to resolve the question of whether the Gifts required each of the Children to satisfy the conditions. However, for the sake of completeness I will express my view that the references to "my children" "them" and "they" are to be read as referring to the Children severally rather than collectively, so that four independent gifts are created for these reasons:

(1) The use of the plural in the opening words "I make the following gifts of remainder" and later "such gifts". It is not one gift to all four Children.

(2) The separate reference to each of the Children and their portion with at least one of them receiving a different proportion to the others.

(3) The use of "they" in the substitutionary provisions set out in clause 4 must be several and, in the absence of compelling reasons otherwise, the Court should proceed on the basis that the word "they" is used consistently in clauses 3(xiv) and 4. To expand upon this point, clause 4 provides: "... if any of the said [Children] should predecease me then to vest the shares under this my Will that they would otherwise have taken ... in such of their children". To be given a sensible meaning, clause 4 can only be read as referring to each of the Children severally. It would be a bizarre result to read it in such a way that if only one of the Children predeceased Mr Carroll then the shares of all of them (including those living at Mr Carroll's death) would pass to their respective children.

"Nor" or "or": is non-compliance with one condition enough to enliven the Alternative Gifts?

54 It will be recalled that Adrian submits that construing the expression as part of a whole, "in the event that they should neither convert to Catholicism or attend my funeral" should be construed as "in the event that they should either not convert to Catholicism or not attend". Adrian submits this has the result that compliance with both the Baptism Condition and the Attendance Condition is necessary to avoid enlivening the Alternative Gifts. I agree that should be the result but consider that the words "or both" must be added to how Adrian submits the expression should be construed.

55 Reading the Gifts as a whole, Mr Carroll's intention is clear. For the reasons set out in paragraph [60] below, the Children had to comply with two conditions: the Baptism Condition and the Attendance Condition. The Alternative Gifts are intended to specify what was to occur to the share of any of the Children who did not satisfy both conditions.

56 Failure to satisfy both conditions involves two factual possibilities:

(1) Neither of the conditions is satisfied.

(2) Only one of the conditions is satisfied.

The words which specify when the Alternative Gifts apply must be construed so as to encompass both possibilities in order to give effect to Mr Carroll's intention.

57 Failure to construe those words in the way I have just described would leave open the possibility of partial intestacy. The Court is entitled to infer that Mr Carroll would not have intended that result (see Isaacs J's tenth principle set out in paragraph [40] above).

58 The partial intestacy would occur, irrespective of whether the conditions were precedent or subsequent, if the Alternative Gifts only applied where neither of the conditions had been satisfied but, as has in fact occurred, the Children satisfied one of them. The Children would not be entitled to their respective portions but the Will would be silent about what should occur in that event.

59 While I agree that the construction propounded by Adrian goes some of the way to maintaining Mr Carroll's evident intention if both conditions were not satisfied, it retains an ambiguity as to what should occur if neither condition has been satisfied. The proper construction of the prefatory words in the Alternative Gifts is "in the event that they should either not convert to Catholicism or not attend or both".

Two or three conditions?

60 It is clear on a plain reading of the Gifts that there are only two conditions and not three. Its structure is obvious: the first five lines contain the conditions and the Alternative Gifts explain what happens if the conditions are not satisfied. The two conditions are "becoming baptised into the Catholic Church within a period of three months of the date of my death" and "attending my funeral". The language in the Alternative Gifts of "convert to Catholicism" and "attend my funeral" is intended to relate back to those two conditions. It would also not be sensible to treat the reference to "convert to Catholicism" as adding an additional condition to "becoming baptised into the Catholic Church" because, in the case of a person who already adheres to a religion (such as a Jehovah's Witness) "becoming baptised into the Catholic Church" necessarily is to "convert to Catholicism".

Baptism only?

61 While the Court has concluded that to "convert to Catholicism" is not a third condition, the fact that the expression clearly relates back to the condition "becoming baptised into the Catholic Church" may have an impact upon the proper construction of that condition. This requires an answer to the question whether that condition is confined by its terms to receiving the Roman Catholic sacrament of Baptism or has a wider meaning.

62 The answer to this question has practical significance for the outcome of these proceedings because, consequent upon my finding in paragraph [35] above, because Anthony had already been baptised into the Anglican Church, the Roman Catholic Church is forbidden by its own canon law from rebaptising Anthony. If the expression "becoming baptised into the Catholic Church" is confined to the Roman Catholic sacrament of Baptism simpliciter, then it would be impossible in the requisite sense (see paragraph [103] below) for Anthony (unlike Robyn, Paulene and Susan) to comply with that condition.

63 While I agree with the result for which Adrian contends, I do so for different reasons to those advanced on his behalf. In particular, I do not think that it adequately captures the process of construing the Gifts to solve the problem by concluding that Mr Carroll used "baptised" and "convert" synonymously.

64 For the reasons which now follow, I have concluded that on its proper construction the word "baptised" in the expression "becoming baptised into the Catholic Church" means "ritually initiated".

65 Even without the later use of "convert", the expression "becoming baptised into the Catholic Church" is ambiguous. It is not as precise as, for example, "undergoing the sacrament of Baptism in the Roman Catholic Church". It may be intended to be synonymous with "being received into the Catholic Church" which means becoming a Roman Catholic but does not specify the method or rite by which that is done.

66 Even if I am wrong about the inherent ambiguity referred to in the previous paragraph, the later use of "convert" independently creates an ambiguity. The ordinary meaning of convert in the context of religion is "to cause to adopt a different religion" (Macquarie Dictionary, 6th edn, Macquarie Dictionary Publishers Pty Ltd, 2013). It would be a strange result if, in its plain English meaning, Anthony "converted" to Roman Catholicism (as he could if he wished) by receiving the sacraments of Confirmation and Eucharist but nevertheless did not satisfy the condition of "becoming baptised into the Catholic Church". That result would require "convert" to be read down to being confined to conversion by baptism only.

67 Putting the matter in that way highlights that the ambiguities are to be resolved by answering the question whether "baptised" confines the ordinary meaning of "convert" or "convert" widens the literal meaning of "baptised".

68 Before looking at any extrinsic or armchair evidence, the answer to this problem is given (applying Isaacs J's second principle set out in paragraph [40] above) by looking at the whole of the Gifts to discern Mr Carroll's intention. Reading the Gifts as a whole, his intention was obviously to benefit the Children only if they converted to Roman Catholicism and attended his funeral. Any of the Children who asked what they had to do to avoid forfeiting his or her legacy would be met with the answer "attend your late father's funeral and convert to Roman Catholicism". That evident intention is given effect by interpreting the reference to "becoming baptised" to include any other sacramental or ritual means of conversion to Roman Catholicism.

69 Recourse to extrinsic (see Isaacs J's first principle set out in paragraph [40] above) or "armchair" (see paragraph [41] above) evidence fortifies the conclusion I have just expressed. That evidence is Mr Carroll's deep objection to his former wife and the Children being Jehovah's Witnesses and his own Roman Catholicism (even if "nominal"). The Court readily infers from those facts that Mr Carroll's intention was that the Children should convert to Roman Catholicism rather than dictating the specific sacrament they should receive.

70 Finally, his use of "baptised" demonstrates that his intention was for their conversion to be effected or evidenced (or both) by the Children undergoing an official Roman Catholic ceremony or rite of initiation into the Roman Catholic Church. For this reason I have concluded that "baptised" in the Gifts is properly construed as "ritually initiated". Thus, for example, an interior or personal conversion, no matter how genuine, coupled with a public advertisement in which the Children renounced the Jehovah's Witness faith and proclaimed their adherence to Roman Catholicism would not satisfy the Baptism Condition.

Condition precedent or subsequent - the legal principles

71 Whether the Baptism and Attendance Conditions are precedent or subsequent is a critical issue in these proceedings, not least because different tests apply for uncertainty depending on the nature of the conditions. If they are conditions precedent and not uncertain then the Gifts will never have vested in the Children, whose non-satisfaction of the Baptism Condition will then mean that their portions go to the other residuary beneficiaries pursuant to the Alternate Gifts. If the conditions are conditions subsequent then the Gifts will have vested in the Children subject to divesting or defeasance for non-satisfaction of the conditions. If the conditions subsequent are uncertain, and therefore void, then their portions will remain vested in the Children.

72 In Watson v Watson [1999] NSWSC 325 ("Watson"), Windeyer J said (emphasis added):

11 The classic texts all include discussion on whether a condition is subsequent or precedent. See Theobald on Wills 14th Ed 623; Jarman on Wills 8th Ed 1458; Williams on Wills 7th Ed. 325. The law of course favours early vesting, but nevertheless all writers agree that it is necessary to establish the intention of the testator as indicated by the words in the will: Egerton v Earl Brownlow [1853] EngR 885; (1853) 4 HLC 1 at 157.

12 There are some matters which would indicate the condition as being a condition precedent; some that it is a condition subsequent. If there is no basis for decision, then a presumption in favour of early vesting applies: Hickling v Fair [1899] AC 15; Sifton v Sifton [1938] AC 656 at 676.

73 One convenient summary of indicators which, on the authorities, may point to either a condition precedent or subsequent, which I respectfully adopt, is set out in Williams on Wills (9th Edn), Lexis Nexis Butterworths, 2008, ("Williams") at 356-357:

[34.2] Conditions precedent or subsequent. A condition is always whether precedent or subsequent to the vesting of the interest given by the will, and whether it is a condition precedent or subsequent is determined by the construction of the will. If, upon the proper construction of the will, there is no gifts intended until the condition has been fulfilled, the condition is a condition precedent. For a condition to be subsequent the fit must already have vested and the condition is intended to put an end to the gifts. Where it is doubtful whether a condition is a condition precedent or subsequent, the court leans towards a construction which will hold it to be a condition subsequent, for that construction will lead to the early vesting of the gifts and there is always a presumption in favour of early vesting. If the condition is void and is a condition precedent, the gifts fails, but in the case of a condition subsequent the effect of the condition being void is that the gifts takes effect free from the conditions. The gifts will also take effect free from the condition where the condition is merely voidable and is avoided by the donee or is repugnant to the gifts or fails to take effect as being in terrorem, and this is so whether the condition is precedent or subsequent.

The following are some considerations which may help to decide whether a condition is precedent or subsequent. If the condition is capable of being performed instanter it will probably be precedent, whereas if time is requisite for its performance it is more likely to be subsequent. If the nature of the interest is such as to allow time for the performance of the act before the interest can be enjoyed, it is generally precedent, whereas if it is reasonable to suppose that the interest must vest in possession before the donee can be expected to comply with the condition, it will be subsequent. Where a specific time is mentioned for the performance of the condition but not for the vesting of the estate or interest, the condition will in general be subsequent.

Condition precedent or subsequent - the parties' submissions

74 The parties proceeded on the basis that the Baptism and Attendance Conditions would both be either precedent or subsequent. Given that each condition was preceded by "subject to and dependent upon" ("upon" being obviously omitted by error the second time), that must be correct.

75 Focusing on the words "subject to and dependent upon", Carolyn submitted that the Gifts did not vest until both the Attendance Condition and the Baptism Condition were satisfied. Therefore, she submitted, the Baptism Condition, in particular, was a condition precedent rather than a condition subsequent.

76 The Children submitted that the form and layout of the Gifts, being in three distinct parts, created doubts as to whether the conditions were precedent or subsequent. They submitted that when looking at the Gifts as a whole the conditions were subsequent for these reasons:

(1) The words in the last part of the Gifts "then the share given to them under this my Will shall be void" are in the nature of a forfeiture condition and are consistent with the Baptism Condition being a condition subsequent. To forfeit something means to give up what one has, such as a vested interest.

(2) The conditions were to be complied with at a future time after Mr Carroll's death.

(3) The only way to make sense of the substitutionary gifts in clause 4, in particular the words "then to vest the share under this my Will that they would otherwise have taken had they survived me" was a clear indication that Mr Carroll intended the Gifts to vest upon his death. Otherwise, a substitutionary gift in clause 4 would make no sense because one would never know what share the deceased beneficiary would have taken if it were a condition precedent. In other words, one would never know whether the deceased beneficiary would or would not have complied with the condition.

(4) If there was any doubt as to whether the conditions were precedent or subsequent, the Court should treat them as being subsequent by applying the presumption in favour of early vesting.

77 Adrian submitted that the conditions were a condition precedent for the following reasons:

(1) The Gifts being "subject to and dependent upon" each condition was a clear indication that they were conditions precedent to the vesting of the Gifts. Furthermore, it was such a strong indication that it denied resorting to the principle in favour of early vesting, which only applied where the Court was otherwise unable to draw a conclusion.

(2) The words "subject to" and the Alternate Gifts were indicative of a condition precedent: Re Emson; Grain v Grain (1905) 93 LT 104 applied in Watson.

(3) The conditions were qualifications to the Gifts and were thereby a condition precedent: In Re Allen Deceased; Faith v Allen [1953] 1 Ch 811. In other words, three months after Mr Carroll's death each of the Children could have qualified for their share of the Gifts by showing that they had satisfied both conditions. The terms of the Will did not provide for the Children to get any benefit from their legacies unless and until they satisfied both conditions and it followed that there could be no suggestion of defeasance.

(4) The Gifts were absolute in the hands of the Children and were not in the nature of benefits that could be ceased or revoked by reference to future non-compliance with the conditions.

(5) The fact that a condition allowed for time for satisfaction after the deceased's death did not necessarily convert it into a condition subsequent. In Horrigan v Horrigan [1904] 1 IR 29 the condition that the beneficiary make a claim on the estate within three years' of the testator's death was held to be a condition precedent based on the language used by the testator. Furthermore, the period of time allowed in the Will was relatively short (three months) and in the ordinary course of administration the Children would have been unlikely to receive their gifts within three months of Mr Carroll's death.

(6) The obvious purpose of the Alternative Gifts was to set out what should occur if the conditions were not satisfied. Without the Alternative Gifts, insofar as any of the Children did not comply with the conditions what would otherwise have been their share would go on a partial intestacy. The language of those last four lines was insufficiently strong to overcome the use of "subject to and dependent upon" in the initial words of the Gifts.

(7) The difficulty with treating clause 4 as an indication that the gifts in clause 3(xiv) were vested subject to possible defeasance (i.e. the conditions were subsequent) is that the substitutionary provision in clause 4 does not apply to all of the recipients referred to in the Gifts (it does not apply to Robyn) and does apply to Sean Lyons (one of the other beneficiaries). For each of the Children named in clause 4, the reference to "the share under this my Will that they would otherwise have taken had they survived me" should be understood as "a share of the residue previously allocated to them".

Condition precedent or subsequent - resolution

78 The Baptism Condition and Attendance Condition are conditions precedent, for at least some of the reasons advanced by Carolyn and Adrian. It is unnecessary for me to consider all of Adrian's submissions. To paraphrase Windeyer J in Watson at [16], I consider that any non-lawyer reading clause 3(xiv) or Mr Carroll himself would be amazed at a suggestion that the Children were entitled to receive their portions before satisfying the conditions. There are seven reasons for this conclusion.

79 Firstly, the words "subject to and dependent upon" are very strong, if not determinative, indicators of a condition precedent. In Re Emson; Grain v Grain (1905) 93 LT 104, Kekewich J concluded in relation to the words "the bequests herein contained to any charity or charities shall be subject to my trustees or a survivor of them being made members or governors of such charities respectively" (at 105):

I think, on the proper construction of the clause, that the testator must have intended to have said that the gifts should not effect unless that condition is fulfilled. The testator meant that the bequest contained in his will should be subject to his trustees being made members or governors of such charities respectively The word "subject" is not itself conclusive, but it points to this, that the gifts is not to take effect - not to become a perfect gifts - unless the condition is fulfilled. That is a condition precedent.

80 That decision was applied by Windeyer J in Watson, where his Honour was considering a gift expressed to be "subject to and conditional upon the following". Applying Re Emson, his Honour held that the words "subject to" were indicative of a condition precedent.

81 In the present case any doubt about the effect of the words "subject to" is eliminated by the addition of "and dependent upon". Those words serve to emphasise and put beyond doubt that the Childrens' respective portions were not intended to vest until the conditions had been fulfilled.

82 Second, the Alternative Gifts specifying what was to occur if the conditions were not satisfied are a clear indication of a condition precedent. Windeyer J took the same view in relation to a similar clause in Watson which provided "should this condition not be fulfilled then cl 6 hereof shall apply and the shares referred to in this clause shall be dealt with in accordance with cl 6 of this my will".

83 Third, the present case is an example of the following circumstance referred to in Williams (see paragraph [73] above):

If the nature of the interest is such as to allow time for the performance of the act before the interest can be enjoyed, it is generally precedent, whereas if it is reasonable to suppose that the interest must vest in possession before the donee can be expected to comply with the condition, it will be subsequent.

84 Time for the performance of the Baptism Condition had to be allowed before the interest could be enjoyed and there is no reasonable basis upon which to suppose that their interest under the Gifts must vest in possession before the Children could be expected to comply with the condition. At the risk of repetition, the tenor of the Gifts read as a whole is clearly to the effect that the Children were to receive nothing unless and until they had complied with the conditions.

85 Fourth, where, as here, the Gifts were money (as opposed, for example, to land), once absolute in the hands of the Children it could not easily be ceased or revoked in the event of future non-compliance with the condition.

86 Fifth, I do not accept the Childrens' first submission set out in paragraph [76(1)] above. While understandable, it is misleading to characterise the Alternative Gifts as being in the nature of a forfeiture condition. The Children do not forfeit their portions under the Gifts by reason of anything in the Alternative Gifts. Without necessarily accepting that "forfeit" is an appropriate word to use, if the Children forfeited then they did so by reason of their non-compliance with the conditions. That non-compliance then satisfies the condition precedent constituted by the words "in the event that they should neither convert to Catholicism or attend my funeral". Furthermore, again without necessarily accepting the appropriateness of the word "forfeit", while "to forfeit something means to give up what one has" (Carolyn's submission) it can apply equally to a vested interest or the right to a future interest which will vest upon the happening of certain events.

87 Sixth, I do not accept the Childrens' submission set out in paragraph [76(2)] above that the Baptism Condition was subsequent because it was to be complied with at a future point in time. My reasons for that non-acceptance are set out in paragraph [84] above and because I agree with Adrian's submission recorded in paragraph [77(5)] above.

88 Seventh, I do not accept Childrens' submission set out in paragraph [76(3)] above for the reasons advanced by Adrian recorded in paragraph [77(7)] above, with one minor variation. The expression "the share under this my Will that they would otherwise have taken had they survived me" must be construed as incorporating compliance with the conditions because in the event of non-compliance there would be no "share under this my Will that they would otherwise have taken".

89 In any event, because the Court is satisfied that the conditions, whether conditions precedent or subsequent, are not void for uncertainty, the practical outcome of these proceedings does not depend upon the correctness of my view that they are conditions precedent. In circumstances where, on any view, the Children have failed to comply with the Baptism Condition, their portions, if the conditions were precedent, never vested in them or, if the conditions were subsequent, vested in them but were divested or defeated upon their non-satisfaction of the conditions within the specified time.

Void for uncertainty - legal principles

90 The test for uncertainty differs between conditions precedent and conditions subsequent. The parties, correctly, did not suggest the Attendance Condition was uncertain. If, contrary to the conclusions expressed above, the conditions (particularly the Baptism Condition) are conditions subsequent, I will consider the question of uncertainty of the Baptism Condition in relation to both types of condition.

91 The applicable test for uncertainty for each type of condition is conveniently set out in the judgment of the Full Court of the Supreme Court of Victoria in In Re Whiting, deceased; Whiting v The Equity Trustees Executors and Agency Co Ltd [1957] VR 400 at 403, where Lowe J delivered the judgment of the Court:

... It is trite law that the same precision is not required as to the definition of the condition, where it is precedent, as in the case of a condition subsequent. The distinction has often been pointed out and we need to go no further than the case of Re Allen [1953] Ch 801, to find the appropriate test in relation to a condition precedent. "All that the claiming devisee has to do" says the Master of the Rolls at p 817, "is at the relevant date to establish, if he can, that he satisfied the conditional qualification whatever be the appropriate test". Of course, if the language is so vague that one cannot see what the appropriate test is, even a condition precedent will fail. There must be some criterion. Whereas, in the case of a condition subsequent, the forbidden field which the beneficiary must not enter on paying a forfeiture in his interest must be precisely and exactly marked out, and in the case of a condition precedent it is sufficient for the person affected to be able to say "Whatever the boundaries of the field, here at any rate I am or am not (as the case may be) within the field." ...

92 The reference to "precisely and exactly marked out" in relation to the test for uncertainty of conditions subsequent refers to the classic statement of Lord Cranworth in Clavering v Ellison (1859) 7 HLC 707 at 725; 11 ER 282 and 289:

[W]here a vested estate is to be defeated by a condition on a contingency that is taken to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.

93 Lord Cranworth's test has been frequently approved and applied in Australia: see, for example, Perpetual Trustees Executors and Agency Company of Tasmania Limited v Walker [1953] HCA 21; (1953) 90 CLR 270 at 278 per Dixon CJ (dissenting, but Fullagar, Kitto and Taylor JJ agreeing on this point at 291).

Void for uncertainty - the parties' submissions

94 Carolyn submitted that the Baptism Condition was uncertain for the same reasons she submitted that it was uncertain as a matter of construction. I have not accepted her submissions on that point and have found (see paragraphs [50] above) that the Baptism Condition is certain as a matter of construction. I have made findings (see paragraphs [47] to [70] above) as to its proper construction.

95 The Children, whose position was that the Baptism Condition was a condition subsequent, submitted that it was uncertain. However, the basis of their submission was that, on its proper construction, the Gifts contained both the Baptism Condition and the "conversion condition" set out in the Alternative Gifts and that they were void for uncertainty "even if for no other reason than they do not comfortably sit together". I have not accepted the submission (see paragraph [60] above) that there is both a Baptism Condition and a conversion condition.

96 Adrian submitted that the Baptism Condition was certain both in expression and in operation, irrespective of whether it was seen as a condition precedent or a condition subsequent. Insofar as it might be a condition subsequent, Adrian relied upon the decision of the House of Lords in Blathwayt v Baron Cawley [1976] AC 397 ("Blathwayt") where a forfeiture condition subsequent was activated if the person "be or become a Roman Catholic" was held to be not uncertain and the decision of the High Court in The Trustees of Church Property of the Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394 that a condition subsequent that a person "professed the Protestant faith" would not be uncertain. It was submitted on Adrian's behalf that the present case is clearer than those to which reference has been made because whether a person had been through the Roman Catholic ceremony or rite of Baptism is a matter of objective fact and does not turn on whether the individual believes in any or all doctrines or practices of the Roman Catholic faith.

Void for uncertainty - resolution

97 As will be apparent from paragraphs [94] and [95] above, those parties contending for the uncertainty of the Baptism Condition made the same submissions in support of that proposition as they had in relation to their contention that the Baptism Condition was so uncertain that it could not be given a proper construction. I have rejected that submission. In doing so, and finding that on its proper construction the reference to "being baptised into the Catholic Church" means "being ritually initiated into the Roman Catholic Church" I also reject the submission that the Baptism Condition is uncertain.

98 Having regard to the test for a condition precedent (see paragraph [91] above), it is clear that any of the Children could have demonstrated that they satisfied the Baptism Condition by either having received the Roman Catholic sacrament of Baptism, or, in the case of Anthony, having received the Roman Catholic sacraments of Confirmation and Eucharist. Similarly, if I am wrong about the proper characterisation of the Baptism Condition and it is a condition subsequent, upon what I have found to be its proper construction "the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine" (see paragraph [91] above). Whether precedent or subsequent, the Baptism Condition is not uncertain.

99 In reaching this conclusion it is necessary to emphasise that the Court is not concerned with the quality or genuineness of the personal belief which any of the Children might have had if they chose to satisfy the Baptism Condition. Various parts of Dr Geraghty's evidence, to which I have not made reference in dealing with his evidence in paragraphs [30] to [38] above, address the question of whether, for example, the baptism of any of the Children would be valid according to Roman Catholic canon law if the only reason for which they presented themselves to receive that sacrament was in order to obtain their legacy under the Will. The Court is not determining the validity under Roman Catholic canon law of any of the sacraments which any of the Children may have chosen to receive. The Court is interpreting "baptised" and "converts" as plain English words and is concerned to identify whether the satisfaction of the Baptism Condition is capable of objective verification as an event. It obviously is capable of such verification.

100 The Baptism Condition is clearer than that considered by the Full Court of the Supreme Court of Queensland in Re Williams, deceased; Queensland Trustees Ltd v Williams [1950] St R Qd 148. The Full Court came to the unanimous conclusion that a clause in a will which included "provided that no child or remoter issue who shall then have married a person professing the Roman Catholic religion shall participate in any division of this trust" was not uncertain. I respectfully adopt and apply as correct by analogy to the present case the dicta of Macrossan CJ who, after referring to the decision of the House of Lords in Clayton v Ramsden [1943] AC 320 that a condition referring to "Jewish parentage and Jewish faith" was uncertain because it involved a question of degree, said (at 198-199) (Philp J agreeing at 204):

Whether a man professes the Roman Catholic religion cannot, in my opinion, be a question of degree. A man professes the Roman Catholic religion who overtly by words and/or conduct expresses his adherence to it. This involves the profession of acceptance of all the articles of belief which the Roman Catholic Church requires its members to accept and the rejection of anything which is inconsistent therewith. Anything else is not a profession of the Roman Catholic religion whatever else it may be. No question arises of ascertaining the genuineness of the profession. The profession of a religion is not established by a mere inward belief in it. It involves an overt expression of belief. On the other hand, the genuineness or otherwise of the profession is irrelevant to the inquiry necessary to determine whether the disqualification prescribed by the testator has been incurred.

It would, I think, startle the authors of The Act of Settlement and of the Roman Catholic Relief Act, 1829, 10 Geo. IV, c. 7, to be told that there was any uncertainty about the phrase "professing the Roman Catholic religion." In the latter Act the phrases "a person professing the Roman Catholic religion" and "Peer professing the Roman Catholic religion" are used about a score of times. The phrase "professing the Roman Catholic religion" is also used in The Roman Catholic Relief Act of 1830 of this State.

It is also clear from the judgment of Latham C.J. in In re Cuming. Nicholls v. Public Trustee (S.A.) ([1945] 72 C.L.R. 86) that that learned Chief Justice did not think there was any uncertainty the phrase "professing the Roman Catholic religion." See his judgment at pp. 91 and 92.

101 In a concurring judgment in that case, Stanley J (at 208) also made reference to the decision of Farwell J in In Re Evans; Hewitt v Edwards [1940] Ch 629. In that latter case his Lordship was addressing the question of whether a condition subsequent forfeiting the share of one "who might become a convert to the Roman Catholic religion" was uncertain. His Lordship rejected that argument (at 634) for reasons which are equally applicable to and support the conclusion the Court has reached in the present case:

It is said that that decision (In re Blaiberg) of Morton J. and of my own is authority for saying that in this case the forfeiture clause is void for uncertainty. I cannot accept the view that these two clauses are really comparable. The ground upon which I came to the decision which I did in In re Blaiberg and, I think, the ground upon which Morton J. based his decision, was that there the forfeiture clause was contemplating a state of mind and that that was something which the court could not ascertain with any certainty. It was not a particular overt act such as definitely accepting a faith other than your own or renouncing the faith which you originally held. The forfeiture clause in In re Blaiberg contemplated merely that, if a person married someone who did not profess the Jewish faith, there was to be a forfeiture. Whether there would be sufficient compliance with the condition of 'professing the Jewish faith" merely by the particular person's attending synagogues, or doing other acts possibly suggestive, but not necessarily conclusive, of his professing that faith, was so uncertain that there were grounds there sufficient to render the forfeiture clause invalid. But in the present case it does not seem to me that that is the position. A person becoming a convert to the Roman Catholic faith must do definite acts and must be admitted into the Roman Catholic Church. Before being admitted into the Roman Catholic Church such person must renounce the religion which he or she had before, and, before coming a convert, is baptized, perhaps conditionally into the Roman Catholic Church and is given a name on that baptism. There is, in my view, in this case no difficulty in the court's ascertaining for itself whether a person has become a convert or not. Once a person has been admitted into the Roman Catholic Church the forfeiture operates (assuming it to operate at all) and no change of mind or failure to continue to be a Roman Catholic can affect the forfeiture which has taken place once and for all by the definite act of being received into the Roman Catholic Church. It is not a case, here, of a person 'professing the Roman Catholic Church. It is not a case, hereof a person 'professing the Roman Catholic religion,' whatever that may mean : here there is contemplated, in my view, a definite overt act enabling the court to say that a person is no longer a member of the Church of England (or what ever the Church was to which that person formerly belonged) and has become a member of the Roman Catholic Church. That is any act which, in my judgment, can be ascertained with certainty and will in a proper case create a forfeiture.

Impossibility - legal principles

102 The parties, correctly, confined their submissions as to impossibility solely to the Baptism Condition.

103 The test for impossibility is set out by Williams, substantially relying on Edgerton v Earl of Bronlow (1853) 4 HL Cas 1; (1853) 10 ER 359:

[34.7] What amounts to impossibility. Impossibility exists in a state of facts which does not or cannot exist. It depends on the intention shown by the testator in his will whether the proper construction of the condition is that it operates only on the state of affairs existing, and, therefore, in the circumstances does not take effect, or, on the other hand, operates in any event and so is impossible to perform. The impossibility must be in the nature of things, and, therefore, a condition is not impossible because its performance is highly improbable, or because it is out of the power of the donee, or even out of any human power, to ensure its performance.

104 This statement of the law was accepted as correct and applied by Santow J in Miller v Miller (1995) 16 ACSR 73.

Impossibility - the parties' submissions

105 Carolyn submitted that there was a distinction to be drawn between the positions of Anthony, on the one hand, and Robyn, Paulene and Susan on the other. Insofar as Anthony was concerned, it was impossible for him to be "baptised into the Catholic Church" because he had already been baptised as an Anglican. In relation to the other three Children, reliance was placed on an opinion expressed by Dr Geraghty that in a practical sense it would be impossible for them to be baptised into the Catholic Church within three months absent an emergency or a serious reason, with benefiting under the Will not being a sufficient reason. Carolyn invited the Court to read the test set out in Williams "pragmatically".

106 The Children adopted Carolyn's submissions.

107 In relation to the Children other than Anthony, Adrian submitted that Dr Geraghty's oral evidence made it clear that each of the three other Children could have been validly baptised within the three month period. The fact that it may have been beyond their power to ensure their baptism within the relevant period is irrelevant. Applying the test in Williams, the Baptism Condition was therefore not impossible of performance in relation to three of the Children.

108 Adrian's submissions then accepted that Anthony's position was different, because his baptism as an Anglican meant he could not be "baptised into the Catholic church". However, Adrian submitted that Anthony could have "converted to Catholicism" by receiving the sacraments of Confirmation and Eucharist and that this could, on Dr Geraghty's evidence, have occurred within three months.

Impossibility - resolution

109 The test for uncertainty in this area of the law, as summarised in Williams (see paragraph [103] above), is a strict one. In the present case it is not enough that the Children would not, as a matter of choice, or could not, for want of knowledge of the Baptism Condition, have complied with it. Nor is it a matter of whether they could or could not have found a Roman Catholic priest who, knowing all the circumstances including the Will, would have been prepared to administer the relevant sacrament had any of the Children presented themselves for that purpose.

110 The Court accepts Adrian's submissions. It was not impossible "in the nature of things" for Robyn, Paulene and Susan to receive the Roman Catholic sacrament of Baptism within a period of three months from Mr Carroll's death (see paragraph [34] above).

111 As Adrian submitted, the case of Anthony is different. The Court is satisfied that it was impossible "in the nature of things" for Anthony to be "baptised into the Catholic Church" insofar as Anthony could not, as a matter of Roman Catholic canon law, be baptised again after his childhood baptism into the Anglican Church. However, by reason of what the Court has found to be the proper construction of the expression "baptised into the Catholic Church" (see paragraph [70] above), on the basis of the findings I have made concerning Roman Catholic doctrine and practice (see paragraph [38] above) it cannot be said that it is impossible "in the nature of things" for Anthony to have been ritually initiated into the Roman Catholic Church by receiving the Roman Catholic sacraments of Confirmation and Eucharist within the period of three months from Mr Carroll's death.

112 The Baptism Condition is not void for impossibility

Public policy - introduction

113 Assuming that it is not uncertain or impossible, the law will uphold a testamentary gift which is conditional upon the donee adhering to, embracing or abjuring certain religious beliefs. Such conditions have been termed conditions "in restraint of religion" (In re Samuel; Jacobs v Ramdsen [1942] Ch 1 at 30 per Lord Greene MR). The policy or public good which informs that approach is freedom of testation - the right of a person to dispose of their worldly goods to whomever and however they please, including upon conditions.

114 Testamentary conditions in restraint of religion will not be upheld where they infringe some other aspect of public policy which the courts consider should take precedence over freedom of testation. For example, a condition will be declared void as contrary to public policy if it interferes with a parent's exercise of their parental duty in regard to the religious instruction of her or his children (In re Borwick; Borwick v Borwick [1933] 1 Ch 657 referred to in In re Cuming; Nicholls v Public Trustee (South Australia) [1945] HCA 32; (1945) 72 CLR 86 ("Cuming")) or if it is contrary to the law's policy to preserve and maintain marriage (The Trustees of Church Property of the Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394).

115 The Children submitted that, in the 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 hitherto unrecognised principle of public policy which overcame Mr Carroll's freedom of testation. These submissions invited consideration of whether the Court is bound by the decision of the High Court in Cuming and, if so, whether the Court could nevertheless depart from that case if satisfied that some new public policy should now prevail.

Public policy - the parties' submissions

116 When the proceedings were first before the Court, Carolyn did not contend that the Baptism Condition was void on public policy grounds. On the resumption of the hearing she withdrew her submissions to that effect and supported the Childrens' submissions on the point. Carolyn submitted that "in this increasingly secular and materialistic age it is not appropriate for the entitlement of beneficiaries in wills to lose their inheritance by reason of, on the defendant's evidence, the capriciousness and prejudices of the testator". However, in making that submission she accepted that given the absence of a general prohibition against religious discrimination in any of the Commonwealth or State anti-discrimination statutes, "it cannot be submitted therefore that the anti-discrimination legislation in Australia justifies a decision by the Court to find the [Baptism Condition] bad on the basis of public policy".

117 The Children submitted that both conditions, although their primary attention was on the Baptism Condition, were void because Mr Carroll:

(1) Discriminated against the Children on the grounds of their religion.

(2) Promoted discord within his family in a way which affronted modern twenty first century societal norms and concepts of universal human rights and freedoms.

(3) Thereby offended public policy.

118 The Children submitted that there was no ratio decidendi in Cuming which bound this Court, particularly because the High Court simply assumed that a condition in restraint of religion was not void on public policy grounds unless it interfered with parental rights and duties, the latter being the matter at issue in Cuming. It was therefore open to this Court to find that the conditions were per se void for being contrary to public policy.

119 The Children submitted that there were examples of cases where the Court had declined to follow a decision of the High Court upon the grounds that there had been a change in public policy or where the Court identified what might be considered a new head of public policy in the absence of guidance from higher courts. Those cases were Seidler v Schallhofer [1982] 2 NSWLR 80, Bondi Beach Astra Retirement Village v Gora [2011] NSWCA 396 (2011); 82 NSWLR 665, Taylor v Burgess [2002] NSWSC 676; (2002) 29 FamLR 167 and Kostiga v Ukrainian Council of New South Wales Incorporated [2013] NSWSC 222. It is unnecessary for me to consider those cases in detail because I accept that the Court is always entitled to consider whether there has been some development in the relevant area of public policy by reference to legislative and common law developments and, of lesser influence, treaties and other international agreements.

120 The Children drew attention to the existing cases in relation to conditions in restraint of religion (see the examples in paragraph [114] above) and submitted that they fell within the broader policy area of protecting the family. They submitted, inter alia, that public policy is always attuned to ensuring respect for and the maintenance of family relations, that what is contrary to public policy necessarily varies from time to time and that it can be difficult in modern day Australia to ascertain any obvious paradigms of social behaviour.

121 The Children submitted that in addition to legislative and common law developments, the Court was entitled to have regard to international treaties and conventions as one of the sources of the common law (citing Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449 per Dixon J). They referred to Australia's ratification of the International Covenant on Civil and Political Rights, Article 18.2 of which provides that "no-one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief for his choice". They also referred to the freedom of religion provided for in Article 18 of the Universal Declaration of Human Rights and Article 5 (paragraph (d)(vii)) of the International Convention on the Elimination of All Forms of Racial Discrimination. They drew attention to several legislative provisions, such as s 116 of the Australian Constitution, which they submitted may indicate a legal policy in favour of the freedom of religion. Finally, the Children relied, by way of analogy, on the discussion in S Grattan and H Conway, "Testamentary Conditions in Restraint of Religion in the 21st Century: an Anglo-Canadian perspective" (2005) 50 McGill Law Journal 511 where the authors conclude (at 536):

In sum, there are strong indications that testamentary conditions in restraint of religion are now open to challenge in Canada, as the Constitutional guarantee of equality in the [Canadian Charter of Rights and Freedoms] and anti-discrimination provisions in provincial legislation combine to permeate private law and redefine traditional motions of public policy.

122 In putting their submissions, the Children fairly accepted that in Blathwayt the House of Lords rejected a submission that in the light of present attitudes exemplified by such enactments as the Race Relations Act 1968 (UK) and the European Convention on Human Rights, the English courts would now hold a clause in restraint of religion to be void on grounds of public policy.

123 Adrian submitted that the Court is bound by the decision in Cuming. The proposition that a testator could validly make a gift subject to a condition in restraint of religion was expressly necessary for each member of the High Court's conclusion and was therefore the ratio decidendi in the case. This Court could not depart from that outcome even if it came to the view that the public policy circumstances had changed: Miliangos v George Frank (Textiles) Limited [1976] AC 443 ("Miliangos").

124 Adrian also relied on the decision of the House of Lords in Blathwayt in support of his submission that the Baptism Condition was not contrary to public policy. He submitted that Blathwayt was referred to with apparent approval by three members of the High Court in Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 per McHugh and Gummow JJ at [63] and Hayne J at [234]. The basis of Blathwayt was still sound, to the effect that the conditions did not prevent the Children from exercising the freedom to participate in their chosen faith. They were free to qualify themselves under the Gifts or not. He submitted that the Court should be slow to find on the evidence that Mr Carroll's intentions in making the Gifts were as malicious as the Children submitted. To the extent that the Gifts gave rise to family discord, that was not a matter with which public policy concerned itself.

125 Turning to the legislative environment, Adrian submitted that the only enacted limit to the freedom of testamentary disposition were the family provision sections of the Succession Act 2006 (NSW), which was itself a reflection of the public policy that there was a social need for testators to provide for their family when there was a demonstrable need. The Childrens' references to the Anti-Discrimination Act 1977 (Cth) and the Racial Discrimination Act 1975 (NSW) needed to be treated with caution for a number of reasons. First, neither legislation contemplated discrimination on the grounds of religion, other than a reference to being of "ethno-religious origin" which was not applicable to the present case. Second, neither applied to "a testamentary disposition, being a private sphere of life": Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [36] per Basten JA. Third, both acts exclude relevant discrimination from their operation in relation to charitable purposes, being a clear expression of public policy, at least in New South Wales, that discrimination by testamentary disposition for public charitable purposes is to be tolerated (s 8 Racial Discrimination Act 1975 (Cth) and s 55 Anti-Discrimination Act 1977 (NSW)).

Public policy - resolution

126 The Childrens' submissions, supported by Carolyn, invite two fundamentally different inquiries. First, are testamentary conditions in restraint of religion now per se invalid as a matter of public policy? This requires consideration of whether Cuming is binding on the Court. Second, assuming such testamentary conditions are not per se invalid, is there some not previously recognised head of public policy to which the Court should now give precedence over freedom of testamentary disposition? The Court accepts Adrian's submissions as to both matters.

127 It is trite law that as a judge sitting at first instance, I am bound to apply the principles of law laid down by courts higher in the appellate hierarchy. In this case that means decisions of the NSW Court of Appeal and the High Court of Australia. A court lower in the appellate hierarchy is bound by the ratio decidendi of a decision in a higher court in that hierarchy. The ratio is a rule of law expressly or impliedly treated by the judge as a necessary step to reaching his or her conclusion: Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 80 NSWLR 226 at [41] per Gzell J; Allsop P, Giles, Hodgson and Tobias JJA agreeing.

128 The affirmation of the validity of a condition in restraint of religion is an expressly necessary step in the Court's conclusion in Cuming. That proposition was the starting point of each judge's chain of reasoning. The clause in question in Cuming was a gift to a grand-daughter "provided she shall have renounced the Roman Catholic religion within three calendar months of my decease". The premise for the decision, relevantly, was that the condition was valid unless, owing to the facts in that case, it was contrary to public policy as an interference with the parental right to bring up a child in a particular faith.

129 Latham CJ (after dismissing all of the attacks upon the condition including that it was void on public policy grounds) concluded that (at 95) "all the objections to conditions fail and the learned Chief Justice was right in holding it to be valid". Starke J (at 96), while acknowledging that conditions in restraint of religion "are not favoured by the courts", took as his starting point that "the cases establish that a testator may by his will make provision in favour of his children or other persons on condition that they shall not embrace a particular faith or become a member of a particular religious order". Finally, Dixon J positively affirmed (at 99):

For a testator to place adherence to religious beliefs and the adherent's pecuniary interest in opposition is not considered contrary to good morals or any principle of public policy which the law vindicates by the avoidance of counter stipulations or conditions. The sensibilities of the law appear to be not so refined concerning that moral question considered as affecting the mind of the donee.

130 Starting from a premise to the effect of that articulated by Dixon J, the High Court went on in Cuming to find that no recognised public policy (in particular interfering with a parent's right to instruct their child in a particular faith) was breached by the condition in question. The condition was therefore valid. As it represents an express statement of law which was a necessary step in the High Court reaching its conclusion, the statement of Dixon J which I have just quoted represents a convenient statement of the ratio decidendi of Cuming. The Court is bound by it.

131 The conclusion that the Court is bound by Cuming to the effect that testamentary conditions in restraint of religion are not per se void on the grounds of public policy has at least this consequence. Absent some statute expressly changing the law, even if I were of the view that contemporary public policy should have the effect of rendering such conditions void per se, the doctrine of precedent prevents the Court from acting upon that opinion. I am bound to apply Cuming as it stands and could do not more than express my contrary opinion for the benefit, if it be considered such, of a higher court. As Lord Simon observed in Miliangos (Lords Wilberforce, Cross, Edmund-Davies and Fraser agreeing) when discussing the maxim cessante ratione legis cessat ipsa lex (if the reason for a law ceases, the law itself ceases), "courts which are bound by the rule of precedent are not free to disregard an otherwise binding precedent on the ground that the reason which led to the formulation of the rule embodied in such precedent seems to the court to have lost cogency". This approach was approved in the judgment of the High Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 11.

132 The conclusion to which I have come in relation to Cuming does not foreclose the second limb of the Children's argument on public policy, namely that even if testamentary conditions in restraint of religion are not per se void as a matter of public policy, they will still yield to a countervailing public policy. However, I am unable to discern from the legislation, treaties and other considerations referred to by the Children a public policy of the kind for which they contend that would overcome the longstanding significance which the law has accorded to freedom of testation.

133 Insofar as they invoke religious discrimination, the various anti-discrimination statutes to which they referred do not prevent discrimination on the grounds of religion generally. Professor Carolyn Evans in her book "Legal Protection of Religious Freedom in Australia", The Federation Press, 2012 at 141-142 makes two observations which tell strongly against the Childrens' submissions:

Outside the area of employment, there is no general protection under Commonwealth law to protect people being discriminated against on the basis of their religion or belief, despite a recommendation by the Australian Human Rights Commission to introduce one ... While most Australian State jurisdictions prohibit discrimination on the basis of religion, two do not. The New South Wales government rejected the recommendation of its own Law Reform Commission to introduce laws prohibiting discrimination on the basis of religion. [The other state is South Australia.]

134 The conditions, in particular the Baptism Condition, do not impinge upon whatever right to the free exercise of their religion the law now accords the Children. The Gifts do not compel the Children to do anything. If they had chosen to do so, they could have complied with the Baptism Condition. They have maintained their adherence to the Jehovah's Witness faith. That choice is to be accorded every respect but does not relieve them from the consequences of that choice on their eligibility under the Gifts.

135 Insofar as the Children appeal to a public policy in favour of maintaining family relations, again nothing to which they have referred supports the existence of such a policy which applies in such general terms. The Court has found that Mr Carroll was outraged by and disapproved of his former wife's and the Childrens' conversion to the Jehovah's Witness faith. It is unnecessary for the Court to make any further findings, including as to the extent to which, if at all, that outrage and disapproval motivated the conditions which Mr Carroll applied to the Gifts.

136 It is an unfortunate fact that many testamentary gifts perpetuate or create family disharmony, whether or not the testator intended that to occur. The fact that a testamentary gift has had such an unfortunate effect (even where that effect was obviously intended) has never been a basis upon which the law has acted to declare that gift void as contrary to public policy.

137 I respectfully adopt Lord Edmund-Davies' observation in Blathwayt (at 441) that "after all, a not unimportant matter of public policy is involved in limiting a testator's power to dispose of his own property in his own way without clear justification for so curtailing his freedom being first established". Nothing in the matters to which the Children and Carolyn have pointed in the ingenious arguments made on their behalf has demonstrated to the Court that such a clear (or any) justification exists in New South Wales law as it stands today to avoid the conditions by recourse to the concept of public policy.

Conclusion

138 The conditions, particularly the Baptism Condition, are not uncertain, impossible or contrary to public policy. The Children have only complied with the Attendance Condition, which is insufficient for them to take their benefits under the Gifts. The portions of Mr Carroll's estate that would have gone to the Children under the Gifts now fall to be divided among the other residuary beneficiaries in accordance with the Alternative Gifts.

139 The Amended Summons will be dismissed. I will hear the parties as to costs.

Decision last updated: 06 August 2014