Court of appeal overturns family provision award in favour of ex-wife

03 October 2019

Lodin v Lodin [2017] NSWCA 327

The NSW Court of Appeal has allowed the appeal from the decision of the Supreme Court, and set aside the award of $750,000 to the respondent, the deceased’s former wife, from an estate of in excess of $5 million, pursuant to Chapter 3 Succession Act 2006. The appellant was the daughter of the respondent and the deceased, and the sole beneficiary.

“Factors warranting the making of the application” and “natural object of testamentary recognition”

Whilst the respondent was an eligible claimant under category (d) of s. 57 (1) Succession Act 2006, she was also required to prove pursuant to s. 59 (1) that: “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application.”

The Court of Appeal disagreed with Brereton, J, who had found that, despite her attitude to the deceased since their relationship ended 24 years before involving “relentless persecution in which she carried into effect as best she could her stated aim of making the deceased’s life a misery by pursuing him and his resources in every way she could”, there were still factors warranting the making of the application, that the estate was ample to make adequate provision, she being left in considerable need and reliant on social security whilst the daughter she raised inherited in excess of $5 million; and found she remained a natural object of testamentary recognition.

The Court of Appeal found the circumstances of the respondent and the size of the estate were matters relevant to adequacy of provision, not whether there were factors warranting and whether she was a natural object of recognition.

She and the deceased had concluded a property settlement by financial orders resolved in 1992, had separated about 24 years, and divorced about 19 years, before the death of the deceased. They cohabited only about 19 months. Brereton, J said “the relationship, marriage and its breakdown had had a serious impact on the rest of the respondent’s life” and referred to the combination of the unusual and enduring impact of the relationship and marriage on her current circumstances of need. The Court of Appeal found however the financial needs of the respondent were due to a number of factors unrelated to her relationship with the deceased.

Brereton, J found there were factors warranting the making of the application based on a continuing disability manifested by her persecution of the deceased, and her propensity for conflict with others manifested in her difficult relationship with her daughters. The Court of Appeal disagreed, finding that the medical evidence from 1994 (of the unusually enduring impact of the separation and marriage breakdown on the respondent) did not justify finding a continued disability.

The other matters relied on by the Court of Appeal were that the deceased had meticulously complied with his child support obligations since separation; the respondent’s financial circumstances were largely attributable to injuries from a series of motor vehicle accidents, and to legal costs incurred by her relentless pursuit of the deceased; and there was no evidence establishing a causal link between the domestic relationship and her difficulties at the hearing.

As regards the conclusion of their financial relationship by court orders, the Court of Appeal stated that whilst the decision of Dijkhuijs v Barclay (1988) NSWLR 639 showed “a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.”

A special leave application has been filed with the High Court.

This article was written by Michael Henley, Partner and Christine McPhilips, Special Counsel.

Publication Editor: Michael Henley, Partner


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