There is a large number of examples of capricious and unreasonable distributions that have come before the courts over time. There are far too many to list within this blog. It would be reasonable to conclude that there are many cases that do not receive the benefit of a judicial publication. A small number of examples are set out below. These examples are designed to highlight the deficiencies of unfettered testamentary freedom in regards towill preparation.
Infringing on religious freedoms
In the case of Re Kearney  VR 56, the testator stated in his will that his executor must only make distributions to grandchildren who “at the time of such distribution be Roman Catholics and not have married Protestants.” This clause was held by the court to be valid. In Re Cuming; Nicholls v Public Trustee (South Australia)  HCA 32, the High Court upheld a similar gift to a granddaughter “provided she shall have renounced the Roman Catholic religion within three calendar months of my decease” [sic] In Clayton v Ramsden  1 All ER 16, the testator wrote that his daughter would forfeit her interest under his will if she married “a person who is not of Jewish parentage and of the Jewish faith.” This clause was held to be void for uncertainty. In Re Winzar (1953) 55 WALR 35, the testator wrote “Should any relative participating in this my Will marry anyone of any other religion but that of my husband’s & mine (Protestant) I direct they shall at once be disinherited and, should they follow any other religion but mine (Protestant) I direct they, he or she shall at once be disinherited.” In Hickin v Carroll & Ors (No 2)  NSWSC 1059, the deceased disapproved of his ex-wife and children’s baptism as Jehovah’s Witnesses and sought to force them to convert to Roman Catholicism by an express condition precedent in the Will. Attending the funeral was also a condition precedent.
Encouraging divorce and preventing re-marriage
In Ramsay v Trustees Executors and Agency Co Ltd  ALR 105, the testator made the following gift:
“Subject thereto to pay the income of my estate to my son George Binnie Ramsay for such period and so long as he shall remain married to his present wife Irene Ramsay and on the termination of such period in trust for my said son absolutely.”
The effect of the gift was that the only way the son could vest the capital was for his wife to die or for him to divorce her. In the Re Thomson  SASR 278, the testator made a gift subject to a proviso not to re-establish marital relations, by saying:
“Should Mrs M J Eliott [sic] remarry or resume martial [sic] relations with her discarded husband, Mr Arthur Elliott, within ten years of my demises [sic], then the entire property be sold and the proceeds devotes [sic] to the welfare of needy, and lonely Old Aged Pensioners, residing within thirty miles of Bradbury, S.A.”
Requests to abandon parental responsibility
In Re Ellis; Perpetual Trustee v Ellis (1929) 29 SR (NSW) 470, the deceased gifted “the rest and residue of my estate conditional upon my husband leaving my child to be brought up by my sister Mrs Marie Nears and her husband or the survivor of them.” The will set out extensive stipulation on how the daughter would be temporarily permitted to live with him in Australia before being forced to return home to England and sought to effect an abandonment of the father’s parental rights.
Conditions that a person be known by a certain family name.
In Littras v Littras  2 VR 283, the Testator made a gift to his children on the condition that the beneficiaries be lawfully described by the surname “Littras.”
Restraint on residency or nationality
In Kotsar v Shattock  VR 13, the testator gifted the whole of his residuary estate on trust for his daughter “if and when she shall attain the age of twenty-one years provided that upon the attainment of such age she shall then be resident in one of the countries of the British Commonwealth of Nations”, and in the event of the failure of the above trust to pay and transfer the residue to certain charitable institutions. The daughter resided in Estonia which was one of the Soviet Socialist Republics as at the date of the deceased’s death. The Court held the clause to be valid and her interest was forfeited.
Craig Gregson LLM TEP
To learn more about the process of writing a Will, contact our experienced Will Preparation lawyers in Perth.
- Other examples include Re Caborne  Ch 224, Re Johnson’s Will Trusts  1 All ER 553; Ellaway v Lawson  QSC 170.↑
- See also Re Sandbrook  2 Ch 471.↑
- At .↑
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