The testator, a ‘nominal’ Roman Catholic, gave gifts of money in his will to his children, who were Jehovah's Witnesses, subject to the conditions that they both be baptised into the Roman Catholic Church within three months of his death and attend his funeral. The children all attended his funeral but were not baptised into the Roman Catholic Church. They challenged the validity of the baptism condition, inter alia, on the basis that it was contrary to public policy: it discriminated against the children on grounds of religion and promoted discord within his family in a way that affronted twenty-first-century societal norms and concepts of universal human rights and freedoms.

The court referred to the decision of the House of Lords in Blathwayt v Baron Cawley [1976] AC 397 and held that it was bound by the decision of the High Court of Australia in Re Cuming; Nicholls v Public Trustee (South Australia) [1945] HCA 32 that testamentary conditions in restraint of religion are not per se void on the grounds of public policy. Nevertheless, this did not prevent the children from arguing 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. Despite this, the court was unable to discern a public policy of the kind that would overcome the long-standing significance which the law has accorded to freedom of testation. The application was dismissed. [RA]