Lieberman v Morris [1944] HCA 13

Lieberman v Morris [1944] HCA 13

A covenant by a widow entered into prior to marriage not to apply under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) is void and does not preclude an application under the Act. The Act, properly construed, does not permit contracting out except in the specific circumstances set out in its provisions, and such covenants are contrary to public policy embodied in the statute.

Parties
Appellants: Lieberman and another; Respondent/appellant Below: Morris (Elizabeth Chmelnitzki/Shell/Mrs Morris)
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales (full Court), After an Order by Roper J.; Final Judgment in the High Court of Australia
Outcome
Appeal dismissed
Legal Topics
Testator's Family Maintenance, Contracting Out of Statutory Rights, Public Policy and Covenants, Jurisdiction Under Family Provision Legislation
Succession Law Family Law Testator's Family Maintenance Contracting Out of Statutory Rights Public Policy and Covenants Jurisdiction Under Family Provision Legislation

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Parties

Lieberman and another

Appellants

Morris (Elizabeth Chmelnitzki/Shell/Mrs Morris)

Respondent/appellant Below

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales (full Court), After an Order by Roper J.; Final Judgment in the High Court of Australia

Legal Issues

  1. 1 Whether a covenant prior to marriage by a widow not to make a claim under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) precludes her from applying under the Act after the testator's death
  2. 2 Whether such a covenant is void as against public policy or as an attempt to oust the jurisdiction of the court

Ratio Decidendi

A covenant by a widow entered into prior to marriage not to apply under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) is void and does not preclude an application under the Act. The Act, properly construed, does not permit contracting out except in the specific circumstances set out in its provisions, and such covenants are contrary to public policy embodied in the statute.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs of respondent out of estate