Nicholls v Public Trustee (SA) - [1945] HCA 32

72 CLR 86

IN RE CUMING. NICHOLLS

PUBLIC TRUSTEE (SOUTH AUSTRALIA)

RESPONDENTS.

AND ANOTHER

RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA. Will-Conditional gift-Condition precedent-Renunciation of Roman Catholic faith

-Uncertainty--Validity of condition-Public policy-Interference with parental r

duty-Infant legatee-Infant legatee married-Law of Property Act, 1936 (S.A.) ADELAIDE,

(No. 2328 of 1936), 8. 23. Sept. 19, 20.

A testatrix, subject to a life interest, left half of her residuary estate upon SYDNEY,

trust for her grand-daughter "provided she shall have renounced the Roman Nov. 19.

Catholic religion within three calendar months of my decease." The grand. daughter, who had married during the life of the testatrix, professed and had Latham C.J.,

not renounced the Roman Catholic faith. She did not attain the age of twenty- one years until three calendar months and one day after the death of the

Held: (1) The condition was a condition precedent and was valid: (2) It was not void for uncertainty, because the condition requiring renunciation was capable of performance by an unequivocal and sincere declaration: (3) It was not void for impossibility, because the beneficiary, though under twenty- one years of age, was competent to renounce her religion; dictum of Luxmoore J. in In re May ( (1932) I Ch. 99, at p. 106) applied: (4) As the beneficiary was a married woman, it was not void as contrary to public policy as an interference with the parental right to bring up a child in a particular faith.

Decision of the Supreme Court of South Australia (Napier C.J.): Inre Cuming (1943) S.A.S.R. 336, affirmed.

72 CLR 87

APPEAL from the Supreme Court of South Australia.

By her last will and testament, Phebe Smith Cuming appointed the Public Trustee of Adelaide sole executor and trustee of her will. She left the residue of her estate to her trustee upon trust for invest- ment and for payment of the income therefrom (so far as material) as to one-half share to her daughter Joyce Torrens Backshall for life. She then directed her trustee as follows "Upon the decease of the said Joyce Torrens Backshall as to one half of the capital sum representing my residuary estate upon trust for my grandchild Bridget Irene Backshall provided she shall have renounced the Roman Catholic religion within three calendar months of my decease and failing such renunciation as aforesaid then as to such one half of the capital sum as aforesaid upon trust for the Protestant Children's Home at Magill in the said State for the general funds of such Home." The testatrix died on 27th December 1941 and was survived by the daughter and the grand-daughter named in the will. The Public Trustee duly proved the will. At the date of the death of the testatrix, the grand-daughter Bridget Irene Backshall had married one Nicholls. She did not attain her majority until 28th March 1942, one day after the lapse of three calendar months from the death of the testatrix. It was common ground that she professed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicholls v Public Trustee (SA)

Details

AGLC: Nicholls v Public Trustee (SA) [1945] HCA 32
Case: [1945] HCA 32
Decision Date: 19 November 1945

CaseChat Overview and Summary

The appeal concerned a testamentary gift by Phebe Smith Cuming to her granddaughter, Bridget Irene Backshall (later Mrs. Nicholls). The testatrix directed that half of her residuary estate be held in trust for Bridget, provided she renounced the Roman Catholic religion within three months of the testatrix's death. If Bridget failed to do so, that half of the estate was to go to the Protestant Children's Home at Magill. Bridget, who was married and under the age of 21 at the time of the testatrix's death, professed the Roman Catholic faith and had not renounced it. The Supreme Court of South Australia, per Napier C.J., held the condition to be valid and that Bridget had not fulfilled it, thus failing to take the gift. Bridget appealed this decision to the High Court of Australia.

The High Court was required to determine several legal issues. Firstly, whether the condition imposed by the testatrix was a condition precedent or a condition subsequent. Secondly, if it was a condition precedent, whether it was void for uncertainty, meaning it was impossible to ascertain with sufficient clarity what constituted renunciation of the Roman Catholic faith. Thirdly, whether the condition was void for impossibility, particularly in light of the beneficiary's minority. Finally, the court had to consider whether the condition was void as contrary to public policy, specifically by interfering with parental rights and duties regarding a child's religious upbringing.

The High Court, affirming the decision of the Supreme Court, held that the condition was a valid condition precedent. Latham C.J. reasoned that the wording of the will clearly indicated the testatrix's intention that Bridget must perform the act of renunciation before acquiring any interest in the gift. The court found the condition was not void for uncertainty, as an unequivocal and sincere declaration of renunciation was capable of performance and ascertainment, and in this case, Bridget had clearly not renounced her faith. Furthermore, the condition was not void for impossibility; the court applied the principle that a minor, if of sufficient discretion, is capable of renouncing their religion, citing dictum from Luxmoore J. in *In re May*. Crucially, the court found the condition was not void as contrary to public policy because Bridget was a married woman, and therefore, any parental right or duty to control her religious upbringing had ceased, making the condition not an interference with parental control in the circumstances.

Consequently, the High Court dismissed the appeal. The court ordered that Bridget Irene Nicholls should abide her own costs, while the respondents were allowed their costs out of the estate.

Orders