Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors [2013] NSWSC 1686

Supreme Court New South Wales

Medium Neutral Citation: Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors [2013] NSWSC 1686 Hearing dates: 11 November 2013 Decision date: 14 November 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Hearing reopened to require contradictor Catchwords: PRACTICE AND PROCEDURE - Contradictor - Hearing reopened on Court's own motion before judgment to require contradictor Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Tawil v Public Trustee of New South Wales SCNSW; unreported, 1 July 1998 Texts Cited: Butt, P "Testamentary Conditions in Restraint of Religion" (1977) 8 Syd LR 400 Category: Procedural and other rulings 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 (Defendants) Solicitors: Warren McKeon Dickson (Plaintiff) L. Rundle & Co (Defendants) File Number(s): 2013/143800 Publication restriction: No

Judgment

Summary 1Patrick Carroll ("Mr Carroll") died on 16 April 2012. He left a will made on 15 December 2011 (the "will"). Probate of the will was granted to his executrices being the plaintiff (his step-daughter Ms Hickin) and his daughter Ms Klar (both of whose names are misspelt in the will). 2The plaintiff seeks this declaration: A declaration that the conditions attached to the gift 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. 3Sub-clause 3(xiv) is: (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 my children attending my funeral: - (a) ROBYN PATRICIA LYONS - 8.44% (b) PAULINE JUNE CARROLL - 8.44% (c) ANTHONY JOHN CARROLL - 8.44% (d) SUSAN MARGARET KLAH - 10.56% in 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. 4The defendants (one of whom is the co-executrix Ms Klar) are the four persons named in sub-clause 3(xiv). 5The proceedings were heard by me three days ago on Monday, 11 November 2013. The parties who appeared before me all accepted that the condition in clause 3(xiv) of the will referring to baptism and conversion to Catholicism (the "Catholic condition") was not contrary to public policy. However they submitted it was void for uncertainty or because it was impossible. Notwithstanding the careful arguments of Mr P.P. O'Loughlin of Counsel for the plaintiffs and Mr M. Gorrick of Counsel who appeared with Ms J. Walker of Counsel for the defendants, at the end of the hearing I was left with the clear view that there were arguments which could properly be put in support of the validity of the Catholic condition. While so much was clear to me, I emphasise I do not have any view as to the ultimate outcome of the proceedings. 6Having come to that view it follows that the proceedings thus far have been irregular for want of a contradictor. I relisted the matter before me today to discuss with the parties how the position could be rectified. As a result of that discussion I made the orders set out in paragraph 35 below. These are the reasons for those orders.