Lieberman v Morris

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.