MCKENNA v SOLOMON and ORS [1994] NSWCA 200

MCKENNA v SOLOMON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and SHELLER JJA 1 November 1994, 9 December 1994

[1994] NSWCA 200

TESTATOR'S FAMILY MAINTENANCE — family provision — sometime defacto wife — 21 months relationship — leaves established employment and home to move interstate with deceased — loses seniority and salary — held: (allowing appeal): Provide $40,000 legacy — importance of provision for homemaker's contribution emphasised.Singer v Berghouse No 2 (1994) 68 ALJR 653; 123 ALR 481 (HC) considered.

TESTATOR'S FAMILY MAINTENANCE — moral duty — whether erroneous consideration — need to avoid glossing the statute.

TESTATORS FAMILY MAINTENANCE — family provision — sometime de facto wife's claim — man about 50 and woman 48 lived together for twenty-one months — woman abandons established employment to move from Wollongong to Brisbane to participate in man's business venture which later failed — parties returned to Wollongong and eventually agree to live apart — intimate personal relationship continues until death of man shortly after — informal will leaves entire estate to three daughters — woman's claim dismissed by Master McLaughlin — held: (1) In reviewing the order, the Court must approach the matter as of an appeal against a discretionary decision. Singer v Berghouse [No 21 (1994) 68 ALJR 653; 123 ALR 481 (HC) applied; (2) Errors of approach, principle and fact-finding authorised the Court to set aside the Master's orders and substitute its own. Eggler v Mitchelmore, Court of Appeal (NSW), unreported, 11 November 1992; [1992] NSWJB 114; (3) The Master erred in his evaluation of the nature of the relationship between the parties and in his failure to make proper provision for the contributions of the woman as a homemaker. Mallett vy MaDet, (1984) 156 CLR 605; Dwyer v Kajo (1992) 27 NSWLR 728 (CA) applied; (4) The administrators had failed to provide adequate information concerning the true value of the estate and the Court would infer that the estate was sufficient to sustain a legacy in favour of the woman. Blore v Lang (1960) 104 CLR 124; Black v Kellner [1992] FLC #92-287 referred to; (6) A legacy of $40,000 should be ordered out of the notional estate. Benney v Jones (1991) 23 NSWLR 559 (CA) referred to.