NEW SOUTH WALES. Testator's Family Maintenance- Right to contract out of Act-Widow-Covenant
prior to marriage to make no claim under the Act-Public policy-Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) (No. 41 of 1916-No. 30 of 1938), 88. 3, 5, 6, 8-10.
A person is not precluded from making an application under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) by reason of having covenanted with the testator not to do so.
Decision of the Supreme Court of New South Wales (Full Court): In re Jacob Morris (Deceased), (1943) 43 S.R. (N.S.W.) 352: 60 W.N. 201, over- ruling In re T. Doogan (Deceased), (1923) 23 S.R. (N.S.W.) 484; 40 W.N. 121, approved.
APPEAL from the Supreme Court of New South Wales.
Miss Elizabeth Chmelnitzki, also known as Elizabeth Shell, who arrived in Australia in October 1938, met Jacob Morris about December 1939.
At that time Morris was a widower aged 78 years, with one son who was married and the father of a child. Miss Chmelnitzki was 42 years of age.
Miss Chmelnitzki was asked by Morris to marry him and, after she had had independent legal advice, she and Morris, on 7th Feb- ruary 1940, executed a deed in which, after reciting that the parties were about to marry one another and that Miss Chmelnitzki, being fully cognizant of the disparity in the ages of the parties, realized that but for the execution of the deed the marriage would result
in the disappointment of other persons who had just claims on
Morris' bounty and that the parties with a view to preventing disputes in the future were desirous of then determining certain financial questions between them, contained a covenant by Miss Chmelnitzki that in consideration of the celebration of the marriage and of the mutual agreements set forth in the deed she would not, inter alia, make, institute or prosecute any claim of any kind against Morris' estate arising under or by virtue of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.), or any similar legislation that might thereafter be enacted in sub- stitution therefor in lieu thereof or in addition thereto. For the same consideration Morris covenanted that provided at the date of his death the parties were not divorced, judicially separated or living apart he by his last will would bequeath to her property to the value of not less than £500.
The parties were married on 25th February 1940. There was not any issue of the marriage.
During his lifetime Morris transferred to his wife property worth upwards of £3,000.
Morris died on 3rd August 1942. By his will dated 23rd February 1940, which he declared was made in contemplation of his marriage to Elizabeth Shell, Morris, inter alia, gave, devised and bequeathed to "Elizabeth Shell," subject to the proviso as set forth in the deed, 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 Lieberman v Morris
Sign in free to access the full text
Details
AGLC
Lieberman v Morris [1944] HCA 13
Case
[1944] HCA 13
Decision Date
CaseChat Overview and Summary
The appeal concerned a widow, Elizabeth Morris, who had covenanted in a deed executed prior to her marriage to the testator, Jacob Morris, that she would not make any claim against his estate under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.). Despite this covenant, she applied to the court for provision from the estate. The matter reached the High Court of Australia following a decision by the Supreme Court of New South Wales (Full Court) which, by majority, overturned an initial decision that had upheld the covenant as a bar to her claim.
The central legal issue before the High Court was whether a person could contract out of their statutory right to apply for provision from a testator's estate under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.). This involved determining whether such a covenant was void as being contrary to public policy or whether the Act itself, by its terms or underlying policy, precluded such agreements.
The High Court, by a majority, held that a person is not precluded from making an application under the Act by reason of having covenanted with the testator not to do so. The majority reasoned that while the Act conferred a right to apply to the court, it did not impose a duty on testators, nor did it contain express provisions preventing contracting out. They distinguished the present case from authorities where covenants were held void, such as those concerning matrimonial maintenance, on the basis that the Act was primarily concerned with individual benefits and redressing hardships within a family, rather than a matter of broad public concern or relieving public burdens. The presence of a proviso in section 5 of the Act, which allowed for agreements to be binding only if all parties agreed, was interpreted as implying that individual agreements not to apply would otherwise not be effective.
Consequently, the High Court dismissed the appeal, upholding the decision of the Supreme Court of New South Wales that the widow's covenant did not bar her claim under the Act.