MCKENNA v SOLOMON and ORS [1994] NSWCA 200

MCKENNA v SOLOMON and ORS [1994] NSWCA 200

The Court found the Master erred in underestimating the ongoing intimate relationship and economic sacrifice of the appellant, failed to give proper weight to her homemaker contributions, made factual mistakes about her intentions, and placed undue emphasis on her ability to avoid destitution. The statutory criteria under the Family Provision Act required an order in her favour, as proper provision had not been made for her maintenance and advancement.

Parties
Appellant: Davena McKenna; Deceased: John Solomon (deceased); Beneficiary/respondent: Lisa Anne Solomon; Beneficiary/respondent: Lyn Maree Lagana; Beneficiary/respondent: Lori-Michelle Solomon
Jurisdiction
Australia
Judgment Date
09 December 1994
Procedural Posture
Family Provision/family Maintenance Claim Under the Family Provision Act 1982 (nsw) / Appeal From Equity Division (master) to Court of Appeal
Outcome
Appeal allowed; Master's orders set aside.
Legal Topics
Family Provision, Testator's Family Maintenance, De Facto Relationship, Contributions of Homemaker, Standard for Appellate Review, Application of Moral Duty Under Statute
Wills and Estates Family Provision Testator's Family Maintenance De Facto Relationship Contributions of Homemaker Standard for Appellate Review Application of Moral Duty Under Statute

Case Brief

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Parties

Davena McKenna

Appellant

John Solomon (deceased)

Deceased

Lisa Anne Solomon

Beneficiary/respondent

Lyn Maree Lagana

Beneficiary/respondent

Lori-Michelle Solomon

Beneficiary/respondent

Procedural Posture

Family Provision/family Maintenance Claim Under the Family Provision Act 1982 (nsw) / Appeal From Equity Division (master) to Court of Appeal

Legal Issues

  1. 1 Whether the appellant (de facto wife) was an eligible person entitled to provision under the Family Provision Act 1982 (NSW)
  2. 2 Whether the Master erred in applying the concept of 'moral duty' rather than the statutory criteria
  3. 3 Whether the Master failed to give proper weight to the appellant's contributions as a homemaker and the detriment she suffered

Ratio Decidendi

The Court found the Master erred in underestimating the ongoing intimate relationship and economic sacrifice of the appellant, failed to give proper weight to her homemaker contributions, made factual mistakes about her intentions, and placed undue emphasis on her ability to avoid destitution. The statutory criteria under the Family Provision Act required an order in her favour, as proper provision had not been made for her maintenance and advancement.

Court Disposition

Appeal allowed; Master's orders set aside.

Orders

  • Legacy of $40,000 to be provided in favour of the appellant out of the notional estate.
  • Respondents to pay the appellant's costs of the appeal, with a certificate under the Suitors' Fund Act 1951.