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[2001] WASC 45
plaintiff. Leave granted to the plaintiff to bring the application under the Inheritance Act out of time; parties to be heard as to costs (para 19 and final order).
The plaintiff, a de facto widow, signed a post-death deed releasing claims against the estate in return for $100,000. The executors argued the deed barred any Inheritance Act claim; the plaintiff relied on Lieberman v Morris to say such releases are void as contrary to public policy. Master Bredmeyer held Lieberman binding and ruled the release does not prevent the plaintiff bringing a family provision claim, though the release is admissible evidence. Applying factors from Clayton v Aust, the Master accepted the plaintiff's explanation for delay, found the claim arguable and the estate large and undistributed, and granted leave to bring the application out of time; costs reserved.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,659 words · generated 11/08/2026
The plaintiff, Bethwyn Annette Daebritz, the de facto widow of Alexander Robert Neil Gandy, sought leave to bring an application under s 7(2) of the Inheritance (Family & Dependants Provision) Act 1972 (WA) out of time. The deceased died on 2 August 1998 and probate was granted on 25 January 1999. The six-month limitation period for commencing a claim expired on 28 July 1999. The plaintiff's application for leave was filed on 23 October 2000, roughly 15 months late ([1]).
3 cited instruments linked from this judgment.
In negotiations after the deceased's death the plaintiff and the executors reached agreement on a $100,000 payment (said to have been orally promised in life), but not on the plaintiff's continuing right to occupy the Vasse property. An undated deed of settlement (release) was prepared and signed by the plaintiff in late January 2000; a cheque for $100,000 was sent on 2 February 2000 and the deed was stamped on 22 May 2000 ([2]–[4]). The deed contained broad release language, including clauses deeming the payment to be in full satisfaction of all claims, and permitting the deed to be pleaded in bar to any proceeding with respect to the will or estate (quoted in para [4]).
The defendants (the executors) contended the deed barred any claim for family provision; the plaintiff argued the release was void as contrary to public policy and relied principally on the High Court authority in Lieberman v Morris ([5]). Master Bredmeyer considered whether Lieberman applied and then assessed the Clayton v Aust factors for granting an extension of time. He held the deed was not a bar to the claim because Lieberman is binding on him; he nevertheless treated the deed as admissible evidence. Applying the Clayton factors, he accepted the plaintiff's explanation for delay, found the estate large and undistributed and the claim arguable, and granted leave to bring the claim out of time, reserving costs ([17]–[19]).
Two distinct legal questions drove the decision:
On the first question, Master Bredmeyer relied on Lieberman v Morris and supporting authorities. Lieberman was a High Court decision involving the New South Wales Testator's Family Maintenance Act where the Court (for differing reasons among the judges) held a covenant to forgo rights under the statutory family provision scheme was ineffective to bar a claim. The Master analysed the differences between Lieberman and the present case (noting the NSW statute had a specific contracting-out provision which did not exist in WA), but emphasised that several members of the High Court in Lieberman rested the result on public policy: the remedial nature of family provision legislation means parties cannot validly contract out of the statutory right to apply, whether the contract is made before or after death ([6]–[10]). He also cited Hooker and Re Hatte for the principle that post-death settlements cannot preclude a statutory claim, but that such settlements are relevant evidence when assessing the merits of a claim ([11]–[13]). On that basis he considered Lieberman binding and concluded the deed did not prevent the plaintiff bringing the claim; however he treated the deed as evidence of what the plaintiff accepted in settlement ([16]–[17]).
On the second question, Master Bredmeyer applied the Full Court's approach in Clayton v Aust for considering extensions of time. He accepted the plaintiff's explanation for the lateness (negotiations, obtaining legal advice in November 1999, subsequent discussions and settlement attempts up to August 2000, and seeking counsel's advice in September 2000) and noted the estate was large and not apparently distributed. He also considered the claim had arguable merit, including a possible entitlement to a right of occupation or a sum in lieu. These factors collectively warranted granting leave to bring the claim out of time ([2], [18]–[19]).
In short: the public policy principle preventing contracting out of statutory family provision rights rendered the release non-conclusive; and the procedural criteria for extension of time were satisfied on the facts, so leave was granted.
Before this decision, the binding High Court authority in Lieberman v Morris and several intermediate authorities (Hooker, Re Hatte) articulated the principle that family provision rights cannot be contracted away, and that post-death releases are of limited effect if they seek to defeat the remedial purpose of family provision statutes. The Master treated that body of authority as good law and applicable to the Western Australian Act, notwithstanding statutory differences between NSW and WA ([6]–[10], [16]–[17]).
Daebritz v Gandy reinforces two related propositions in the WA context:
Procedure-wise, it confirms that Clayton v Aust provides the operative framework for deciding applications for extension of time under s 7(2), and exemplifies how those factors are weighed in practice ([2], [18]–[19]).
Para [5]: "The defendants say that this release is a complete bar ... The plaintiff says ... relies on Lieberman v Morris."
Plain English: The executors argue the signed release prevents any further claim; the plaintiff relies on established authority to say it does not.
Para [9]: "The Inheritance Act does not have any equivalent to s 5 of the TFM Act ... any attempt to contract out of its provisions was void as a matter of public policy."
Plain English: Although one technical ground for the High Court's decision in Lieberman (a particular NSW statutory clause) does not exist in WA, other judges decided the case on broader public policy grounds that apply here; those grounds make contracting out of family provision rights invalid.
Para [17]: "I consider that Lieberman v Morris is binding on me ... the deed ... is not binding ... Having said that, the deed is of evidential value."
Plain English: The Master accepts the High Court principle and rules the release will not stop the plaintiff from suing, but the fact she accepted money is something the court can and should consider when deciding the claim.
Para [19]: "I consider the plaintiff has offered a reasonable explanation ... It is a large estate ... The plaintiff's claim has arguable merit ... I propose to grant leave ..."
Plain English: Given why the plaintiff delayed, the estate's size, and the claim's merits, the court allows the late application.
The decision is relevant where a person who could make a family provision claim has signed, after the deceased's death, a deed or other agreement releasing the estate (for example in exchange for a sum of money or some other benefit). It is especially relevant where:
In those scenarios, Daebritz demonstrates (i) the court will treat the Lieberman public policy principle as applicable to the WA Inheritance Act and (ii) the court will still consider the release's terms as relevant evidence in adjudicating the claim and in assessing discretionary remedies and entitlements (paras [4], [9], [17], [19]).
This judgment itself surveys earlier authorities: it applies Lieberman v Morris, follows Hooker and Re Hatte for the proposition that post-death releases cannot preclude a family provision claim, and cites Smith v Smith as recognising the same public-policy principle ([5], [10]–[13]). Master Bredmeyer also distinguished his earlier Bentley v Bentley decision on the facts (that case involved settlement after proceedings were already on foot and court mediation) to show context matters when assessing settlements or releases ([15]).
Daebritz therefore stands as an instance where a WA court applied the Lieberman public-policy rule to invalidate the binding effect of a release in the WA statutory context while preserving its admissibility as evidence. The judgment does not record subsequent appellate treatment of its own reasoning; it situates itself within established High Court and intermediate authority and applies Clayton v Aust criteria for extension of time ([2], [5], [11]–[13], [17], [19]).
Degree of evidential weight: the Master held the release is "of evidential value" (para [17]) but did not set out a detailed framework for the weight such a release should receive when assessing merits, needs, and appropriate provision. Future cases will clarify how strongly post-death releases should influence outcomes.
Comparative weight where estate already distributed: Master Bredmeyer noted the estate "appears not to have been distributed" and treated that as relevant to granting leave (para [19]). The balance may differ where distributions are complete and third-party rights have intervened.
Interaction with any statutory contracting-out provision: the decision emphasises that Lieberman involved a NSW statute with a contracting-out clause, and the WA Act lacks an equivalent (para [9]). If WA legislation were to be amended to include explicit contracting-out mechanics, the result might differ.
Public policy evolution: the Master acknowledged that public policy can change over time (para [16]). Whether later courts would reach the same conclusion, or refine the principle's scope, remains open.
This is general legal information, not legal advice. I can make mistakes. Before you rely on this, act on it, or use any draft, get a qualified Australian lawyer to check it.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DAEBRITZ -v- GANDY & ORS [2001] WASC 45
MATTER : Inheritance (Family & Dependants Provision) Act 1972
Inheritance Act application - Application out of time - Deed of Release signed by applicant after death of deceased not binding on public policy grounds - Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69 applied
Inheritance (Family & Dependants Provision) Act 1972 (WA), s 7(2)
Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62
Discount and Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR (NSW) 598
Hamersley Iron Pty Ltd v Hancock, unreported; SCt of WA; Library No5195; 23 December 1983
Kingsview Nominees Pty Ltd v De Crespigny, unreported; SCt of WA; Library No 7090; 13 April 1988
McKenzie v Falconer-Brown (1990) 3 WAR 438
Smith v Smith [1986] HCA 36; (1986) 161 CLR 217
1 MASTER BREDMEYER: This is a notice of originating motion by the plaintiff to bring a claim under s 7(2) of the Inheritance (Family & Dependants Provision) Act 1972 (WA) ("the Inheritance Act") out of time. The plaintiff is the de-facto widow of the deceased, Alexander Robert Neil Gandy, who died on 2 August 1998 aged 65 years. Probate of his will was granted to the three defendants on 25 January 1999. The six month period, within which a claim under the Inheritance Act should be brought, expired on 28 July 1999. This application for an extension of time was filed on 23 October 2000 and is thus about 15 months late.
2 The factors to consider in an application of this kind are set out by the Full Court in Clayton v Aust (1993) 9 WAR 364. Before considering those factors, however, I propose to consider a major hurdle to the plaintiff's application, namely a deed of release signed by her. Following the death of the deceased, negotiations went on for some time between the plaintiff and the executors about a payment of $100,000 to the plaintiff, which had been orally promised by the deceased during his life, and a similar promise that she would be allowed to stay on the property at Kaloorup Road, Vasse, for as long as she liked. Agreement was reached on the $100,000 payment but not on the other matter. The solicitor for the executors prepared a deed of settlement and this was sent to Mr Stephen McCloud, one of the executors and the family's long-term accountant, for execution. The deed was signed by the plaintiff in Mr McCloud's office, I think in late January 2000. The deed itself is undated. Her signature was witnessed by Mr McCloud's receptionist. On 2 February 2000 Mr McCloud sent a cheque for $100,000 with a covering letter, making mention of the deed, to Shaddicks, the plaintiff's solicitors in Busselton. The deed was stamped on 22 May 2000.
3 The deed is between the plaintiff, called the releasor and the three executors, called the releasees. The deed recites that the releasees are the executors of the estate of the late Alexander Robert Neil Gandy and that under the terms of his will they were appointed as appointors and guardians of the Gandy Family Trust ("the trust"). The deed further recites that the trust is, aside from certain specific bequests, the sole beneficiary under the terms of the will and:
"E. The Releasees have agreed because of the relationship ('Relationship') between the Releasor and the deceased to make a gift of the amount of the settlement sum to the Releasor which the Releasor has accepted on the terms and conditions set out in this Deed."
4 The settlement sum is defined in cl 1.1 to mean $100,000. I quote from the key provisions of the deed:
2. In consideration of the payment of the settlement sum by the Releasees to the Releasor (receipt of which the Releasor hereby acknowledges) and in consideration of the releases set out in this Deed, the Releasor and the Releasees agree that they constitute a full and final settlement of all matters concerning the estate of the deceased.
3.1 The Releasor shall be deemed to have accepted its terms in full and final satisfaction and discharge of all actions, suits, claims, demands and proceedings whatsoever which the Releasor may have or, but for the execution of this Deed, might have had against the Releasees in respect of or arising out of the estate of the deceased and any other matter cause or thing arising out of the estate of the deceased or any other matter of and incidental to the association between the Releasor and the Releasees, the will and the estate of the deceased;
3.2 ...
4. The Releasor acknowledges and declares that the payment to her of the settlement sum by the Releasees is in full satisfaction of all claims and demands whatsoever and that she has no right title or interest in and to the estate.
5. This Deed may be pleaded in bar to any action, suit, claim, demand or other proceeding whatsoever now or at any time hereafter instituted or made by the parties hereto, or any one or more of them or any person claiming under or through the parties or any one or more of them against any one or more of the others of them with respect to the will, the estate and the relationship."
5 The defendants say that this release is a complete bar to the plaintiff bringing any claim for a better provision from the estate of the deceased under the Inheritance Act. The plaintiff says that the deed of release is void, as being contrary to public policy and for that proposition relies on Lieberman & Anor v Morris [1944] HCA 13; (1944) 69 CLR 69.
6 The plaintiff's counsel sought to distinguish Lieberman v Morris which was a decision on appeal from New South Wales. The New South Wales statute, the Testator's Family Maintenance and Guardianship of Infants Act 1916 - 1938 ("TFM Act"), allowed in s 5 a contracting out of the Act in the limited circumstances set out in that section. If the husband or wife, as the case may be, and all the children agreed in writing within 12 months of the grant of probate, that they would be bound by the terms of the will, then that was binding on them. It meant that none of them could bring a claim under the TFM Act. If the children were infants the agreement needed to be confirmed by the court. The period within which a claim had to be brought in New South Wales was 12 months after the grant of probate, so such an agreement permitted the early distribution of the estate.
7 The agreement under consideration in Lieberman v Morris was not of that kind. The plaintiff, Miss Elizabeth Chmelnitzki, then aged 42 years, married a widower, Jacob Morris, aged 78 years. Just prior to their marriage they signed a deed that he would give her a legacy of at least [sterling]500 in his will, and, in return, she would make no claim under the TFM Act. He died two years later. He kept his part of the bargain. He left her [sterling]500 in his will, plus all the furniture and a legacy of [sterling]3 per week for life. The plaintiff brought a claim for further provision under the TFM Act.
8 All five Judges of the High Court held that she could do so. Latham CJ decided the case on a construction point. Section 5 of the TFM Act permitted a contracting out of the benefits of the Act in the limited circumstances of that section. That meant that a contracting out of the Act in any other circumstances, as in Ms Chmelnitzki's case, was not permitted by the Act. The maxim expressio unius exclusio alterius applied.
9 The Inheritance Act does not have any equivalent to s 5 of the TFM Act so that construction argument does not apply to the Western Australian Act. However, in my view, the other four Judges of the High Court decided the case on public policy grounds that the Act was a remedial one designed to benefit widows and children etc who had been inadequately provided for in a will, and any attempt to contract out of its provisions was void as a matter of public policy.
10 Lieberman v Morris is quoted as good law in modern texts on the subject. I quote from Dr A Dickey: Family Provision After Death, at 188 - 189:
"(1) Basic Rule: No Power to Contract out of Right to Apply for Family Provision
It is now clear that unless family provision legislation provides to the contrary, a person cannot contract out of his or her right to apply for family provision. Any such contract is void. The principal case that is commonly cited in support of this proposition is the High Court case of Lieberman v Morris [supra]. The problem with this case, however, is that the members of the court differed in their reasons for holding that a person cannot contract out of a right to apply for family provision. According to three members of the court, this inability resulted from the terms of the family provision legislation that was there under consideration (the previous New South Wales Act). However, according to one of these three justices, and also two others, this inability resulted - or also resulted - from considerations of public policy, according to which the object of family provision legislation is to provide for the maintenance and support of persons who might otherwise become a charge on the state.
The considerations of public policy just referred to are now regarded as the main reason why a person cannot contract out of his or her right to apply for family provision. This inability is accordingly not dependent upon statutory provisions to this effect. In the recent High Court case of Smith v Smith [1986] HCA 36; (1986) 161 CLR 217, all the members of the court acknowledged the principle that unless statute provides otherwise, any agreement to forgo a right to apply for family provision is void as being contrary to public policy.
For the purposes of the rule against contracting out of a right to apply for family provision, it does not matter that the contract was made with the deceased or with beneficiaries of the deceased's estate, or that it was made before or after the deceased's death, or before or after the institution of proceedings for family provision.
Although an agreement to forgo a right to apply for family provision is void, the terms of such an agreement may be taken into account by the court in the exercise of its discretion in an application for provision under the legislation." (.)
11 The case cited by Dr Dickey that one cannot contract out of a right to apply for family provision after the deceased's death is Hooker v Guardian Trust and Executors Co of New Zealand [1927] GLR 536. In Hooker, which was a decision of a single Judge, Reid J, the plaintiff was the widow of the deceased who had been left an interest for life on [sterling]800. She was the second wife. The other beneficiaries were the children of the deceased's first marriage. Following the grant of probate she signed a deed with the executor and the other beneficiaries that she was to get the income of [sterling]1,200 for life instead of [sterling]800. She released the estate from any further claims.
12 Reid J decided to ignore the release. He said that the Family Protection Act is a declaration of State policy and as such it is paramount to all contracts. No contract was valid which purported to prevent a person coming within the scope of the Act from making an application and from having the court adjudicate upon it. He said this was not limited to a contracting out in the life time of the parties. It was put to him that the deed signed by the plaintiff was an ordinary deed of family arrangement and that such a compromise was permissible. He considered that no compromise was binding which had the effect of defeating the intention of the Act.
13 That decision was applied by the Full Court of the Supreme Court of Queensland in Re Hatte [1943] St R Qd 1. In that case, one of the two plaintiffs was a son of the deceased. He accepted a payment of [sterling]450 after the grant of probate and he wrote a letter stating that he had accepted that sum in settlement of his claim. Despite that, he went on with his application under the Testators Family Maintenance Act 1914 (Qld). The trial Judge, Brennan J, considered that settlement was not binding and awarded the son [sterling]1,250 from the residue of the estate. That decision was upheld on appeal by the Full Court. The Full Court considered Hooker's case correct and decided to follow it, that no compromise can preclude a person from claiming under the Act, whether that compromise was reached after an application has been launched, or before the commencement of proceedings. At the same time, the agreement signed by the plaintiff was a relevant matter for consideration in deciding whether he should be given a better provision.
14 There are some differences between Lieberman v Morris and the case before me. In that case the prospective wife covenanted not to claim under the provisions of the Act prior to the testator's death when her future needs, the size of the estate, and the needs of the other persons who might have a call on the bounty of the deceased, were not known. In the present case, the agreement was reached after death when those three matters are known.
15 The present case can also be distinguished from Bentley v Bentley, unreported; SCt of WA (Master Bredmeyer); Library No 970102; 19 March 1997. In that case, the compromise agreement was reached between the plaintiffs and the sole beneficiary under the will, after the plaintiffs had brought a claim under the Inheritance Act. The compromise was reached in a court mediation. I refused to approve the settlement as I thought it was inadequate. In that case, claims having been brought by the plaintiffs under the Act, the court was seized with jurisdiction. In the present case, the plaintiff's claim is not substantively before the court. She is before the court at the moment seeking leave to bring a claim out of time.
16 The majority of the Judges of the High Court in Lieberman v Morris based their decision on public policy considerations. I am aware that public policy considerations can change from time to time and that decision was decided in 1944.
17 Despite these differences, I consider that Lieberman v Morris is binding on me and that I should not distinguish it. This means that the deed signed by the plaintiff is not binding on her and does not prevent her bringing this claim. Having said that, the deed is of evidential value and will be considered as such.
18 I turn now to the factors mentioned in Clayton v Aust (1993) 9 WAR 364. I consider the plaintiff has offered a reasonable explanation for the lateness of the application. Between the death in August 1998 and November 1999 she was engaged in negotiations with the executors. On 19 November 1999 she first got legal advice and learnt of her rights under the Inheritance Act. Further discussions ensued between her solicitor and the executors up to August 2000. As seen, these discussions resulted in the payment of $100,000 and the signing of the deed of release in January 2000. In September 2000 her solicitor sought counsel's advice on a possible claim under the Act. This application was brought in October 2000.
19 It is a large estate. It appears not to have been distributed. The plaintiff's claim has arguable merit. The residuary beneficiary of the estate is the Gandy Family Trust. The defendants have not yet deposed to the assets and liabilities of the beneficiaries of that trust, so I am not able to speak of the plaintiff's needs and deserts, compared to the needs and deserts of the beneficiaries of the trust. Suffice it to say, I consider her claim has arguable merit. The fact that she signed the deed of release as a condition of getting the $100,000 is evidence that she considered that sum adequate. At the same time there was evidence that the deceased had said that she could stay on the Vasse property as long as she liked after his death. The $100,000 may be an adequate cash sum but she may be entitled to some right to occupy the property or a sum in lieu thereof. I think that is arguable. For all these reasons, I propose to grant leave to the plaintiff to bring this application out of time. I will hear the parties on costs.
Daebritz
Gandy & Ors [2001] WASC 45
(1944) 69 CLR 69
(1949) 78 CLR 62
(1990) 3 WAR 438
(1986) 161 CLR 217
(1993) 9 WAR 364
Leave granted to the plaintiff to bring the application under the Inheritance Act out of time; parties to be heard as to costs (para 19 and final order).