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Will dispute sparks religion debate

Although it is hard to do – some people can affect the lives of their loved ones from beyond the grave.

According to a recent NSW Supreme Court case, a father refused to leave an inheritance to four of his children unless they converted their religious beliefs from Jehovah’s Witness to Roman Catholic.

His will explicitly stated that those four children must change religions within three months of him dying to receive a share of his estate. There was another condition included as well – they must attend his funeral.

After his death, the four children attended his funeral as per their father’s wishes – however they didn’t convert to Roman Catholic. This meant, they were all excluded from the inheritance and didn’t receive anything from the will.

The children decided to contest the will and took the case to Court. They claimed that to ask for them to change their religion as part of a will settlement was against public policy and against their right to religious freedom.

Unfortunately for them, this was rejected by the court. It was because, as the will?-maker, their father held a right to testamentary freedom, meaning he has the right to decide where his property and estate goes after his death and lets him impose conditions on this process.

The children were under no obligation to covert to Roman Catholics if they preferred to retain their existing religious beliefs or anything else that the will spelled out. However to receive the inheritance, by law, they would have to comply with their late father’s wishes and change their religion.

According to court documents, the Judge admitted that restraining religious freedom wasn’t favoured by the Court in many circumstances. However, in this particular case, the father’s right to testamentary freedom held greater weight.

It is interesting to note that this case could head back to court if any of the four children converted to Roman Catholic in the future. Although it would be outside the three month window, they could argue that their choice to convert allowed access to a section of their father’s inheritance.

Contesting a conditional will

As wills are individualised documents, there will be occasions when special conditions apply to someone’s inheritance claim.

Some of the simpler ones refer to an age or achievement such as when their child reaches 18 or graduates university. The court sees these as choices as the individual can make a decision to comply to the request.

However, if the will?-maker suggests someone has to do something contrary to public policy, such as commit a crime, then the court will rule against the request.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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