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A Second Bite of the Cherry – Family Provision Claims by Former Spouses

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By Phil Davey

A recent decision of Justice Brereton in Lodin v Lodin: Estate of Dr Mohammad Masoud Lodin throws light on the circumstances in which a former spouse can make a claim against an estate by way of a family provision claim in New South Wales.

The facts of the case can be summarised as follows:

  • The Applicant was the former wife of a medical practitioner who died in June 2014, without a Will;
  • He was survived by his former wife and their daughter, Rebecca;
  • Rebecca was entitled to receive the whole of his estate (valued at about $5 million) upon intestacy;
  • The deceased and his former wife lived together for a very short period of approximately 18 months. The family provision proceedings were commenced 25 years after the deceased and his former wife separated and 23 years after they had finalised a property settlement in the Family Court.

The family provision claim was determined in accordance with NSW law, which is governed by the provisions of the Succession Act (2006). The Succession Act provides that, in addition to establishing that adequate provision has not been made, a former spouse must satisfy the Court that there are factors which warrant the making of the application. In the ACT, a former spouse is also eligible to make a family provision claim, but unlike NSW, there are no extra requirements to show that there are factors which warrant the claim.

The result of the case is that the former wife received provision of $750,000, out of an estate worth $5 million. The Judge held that in this case, there were factors warranting the making of the application, notwithstanding:

  • The very short period of cohabitation between the parties;
  • The fact that they had been separated for a period of 25 years;
  • The fact that the deceased and his former wife had finalised a property settlement in the Family Court in 1992; and
  • The fact that following separation the former wife of the deceased had embarked on a course of hostile action against the deceased including making a complaint against the deceased to the NSW Health Department complaints unit; suing the deceased for damages; commencing domestic violence order proceedings which were subsequently dismissed; and other hostile acts over a lengthy period of time.

Despite the matters listed above, Justice Brereton found that there were factors warranting the application because of the serious impact which the relationship, marriage and its breakdown had on the life of the deceased’s former spouse.  The judge noted in particular, the psychological trauma suffered by her; the fact that her anticipated employment prospects at the time of her family law settlement were not borne out by subsequent events, to her detriment; the fact that while she struggled, the deceased prospered and that his ability to do this was facilitated by his former wife’s assumption of responsibility for the care of Rebecca; and lastly, the size of the estate.

The judgment is significant because it confirms that a former spouse may be successful in making a family provision claim, even where there has been a matrimonial property settlement, if at the date of the hearing there remained an undischarged moral obligation to the Applicant for provision.

Each case will turn on its own facts and, as Justice Brereton commented, this will be an area in which there iswider than ordinary scope for differences of opinion between reasonable minds as to when one divorced spouse will be regarded as having an undischarged obligation to the other.

If you are concerned about the risk of a former spouse making a claim against your estate after your death or if you are uncertain about your rights to make a claim as a former spouse, you should obtain legal advice about your rights and/or what steps you could take to address any risk. Please call us on (02) 6212 7600 or email mail@ddcslawyers.com.au.