Update – Divorce, death & a determined ex-spouse – Court of Appeal says no!

In January of this year there was a decision in the Supreme Court regarding a family provision claim which shocked a lot people, especially those with ex-spouses! It was the decision of Justice Brereton in Lodin v Lodin [2017] NSWSC 10.


The deceased's entire estate was to pass to his only child, a daughter, under the laws of intestacy. The Supreme Court awarded the deceased's ex-wife (who was the mother of his child) $750,000 even though the deceased and his ex-wife had been separated for approximately 25 years and orders had been made in 1992 by the Family Court settling their respective property interests.
 
The daughter of the deceased appealed the decision and the Court of Appeal recently delivered its unanimous decision.
 
The Court of Appeal held that the primary Judge had erred in concluding that there were factors warranting the ex-wife making the family provision application. In coming to this conclusion the Court of Appeal considered a number of matters, including that:
 

  • the marriage had lasted for less than nineteen months;

  • the marriage ended a quarter of a century before the hearing of the family provision claim;

  • the financial affairs between the deceased and the deceased's ex-wife were resolved by final orders of the Family Court in 1992;

  • the deceased had complied with his child support obligations following the breakdown of the marriage;

  • the financial circumstances of the ex-wife were largely attributable to injuries sustained in a series of motor vehicle accidents and her relentless persecution of the deceased;

  • there was no evidence to support a connection between the ex-wife's difficulties at the time of the hearing and her relationship with the deceased;

  • whether or not the passing of the deceased's entire estate to his daughter was "unbecoming" was not relevant to the question of whether there were factors warranting the application.

 
What orders were made?
 
Not only did the Court of Appeal allow the appeal by the daughter, it also set aside the orders made by the primary Judge in favour of the ex-wife and ordered that the ex-wife pay her daughter's costs of the proceedings.
 
See Lodin v Lodin [2017] NSWCA 327 for the full decision.
 
What does this mean?
Ex-spouses who are thinking about making a claim on their ex's deceased estate should give serious consideration to whether there are sufficient factors warranting the making of a family provision claim.
 
Applicants need to be aware that the consequences of making a family provision claim, particularly if there is any risk that they may not be able to establish that there are factors warranting the making of the application, could be considerable. 
 
 

 

 

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Cherrie Homer