Page 2, 8th May 1953

8th May 1953
Page 2
Page 2, 8th May 1953 — A RECENT JUDGMENT

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3 Catholics and an Anglican Will

SIR,-1 think that your report of the recent decision of Mr. Justice Vaisey in the case of re Allen, 1953 Ch. 116. and the comment on it are misleading; there is nothing in the decision which gives cause for disquiet.

It is settled law that a gift which is dependent on a condition is void unless the condition is expressed in such clear terms that the court can see precisely and distinctly what has to be done to fulfil it.

In this particular case the testator left certain property to the eldest of the sons of his nephew Francis "who shall be a member of the Church of England and an adherent to the doctrine of that Church."

The question which Mr. Justice Vaisey had to decide was. to quote his own words: "Is this description, qualification or condition, that the beneficiary is to be a member of the Church of England and an adherent to its doctrine, a description. qualification, or condition which is sufficiently certain to be operative in law?"

He decided, as sou correctly reported, that the expressions "a member of the Church of England" and "an adherent to the doctrine of that Church" were uncertain and incapable of exact definition, and that the gift accordingly failed.

That all the sons of Francis were Catholics was not relevant to the consideration of that particular question. The decision would still have been the same if all the sons had been Anglican bishops: the gift would have failed because of the uncertainty of the condition on which it depended. (The religious beliefs of the sons would only have become relevant if the judge had decided that the condition was expressed with certainty.)

Your report voices disquiet be

cause the Judge "did not once mention membership of the Catholic Church or its doctrinal implications, though he mentioned, by way of comparison, membership of the Jewish faith and of various Noncomformist bodies, not to mention membership of the Conservative and Socialist parties. which none of the beneficiaries had at any time claimed." As explained above the actual beliefs of the sons of Francis were at that stage irrelevant. The Judge mentioned the Noncomformists only as part of his explanation why he did not think that membership of the Church of England was a precise enough concept. He said: "In some respects nonconforming Christians are (and, indeed, they are very apt so to describe themselves) members of the Church of England who do not conform." Mention of Judaism came, by way of example. when the Judge was considering the concept of "adherence to the doctrine of the Church of England." His example was: "Just as in the Jewish communities there are various forms of Judaismstrictly orthodox Judaism, liberal Judaism and other forms of intermediate belief and practice-in the same way there are within the comprehensive walls of the Church of England varying ideas of teaching (which, of course, is the same thing as doctrine). . . ." Adherence to Socialist or Conservative doctrine was mentioned by way of further example.

Catholic doctrine and adherence

to it was not relevant to the question which the Judge was then deciding and nothing sinister or alarming can be read into his omission to mention it: indeed, the omission could well be regarded as a compliment-a tacit admission that although the Church of England, the Nonconformists and the Jews qualified as examples of doctrinal uncertainty, the Catholic Church could not be

quoted as an example. • Your report also complains: "It would be regrettable if this case were to be taken as an indication that the courts in this country were going to regard adherence as the measure of orthodoxy rather than orthodoxy as the measure of adherence." The decision indicated no such thing : it was the testator who made adherence the test (his test) of orthodoxy, not the court : the court only had to decided whether it knew with sufficient certainty what the testator meant by adherence to the doctrine of the Church of England-and it found that it did not.

Catholics, in my submission, have nothing to worry about in this decision. If anything, it is a warning that it is far from easy to impose effective religious conditions on gifts; and if, as a result. it discourages similar efforts which might have the effect of luring beneficiaries away from their religious beliefs by hope of profit, it will have done some good.

"A Catholic Lawyer."

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