Which case won?

The case for the daughter
  • As a former spouse, my mother is only eligible to make an application for family provision out of my father’s estate if she can demonstrate that my father had a moral obligation to make some provision for her.
  • My mother and father’s relationship ended almost a quarter century ago and their financial settlement was a “clean break”. It took into account that my mother’s earning capacity was less than my father’s and that she would have ongoing care responsibilities for me. Although I lived with my mother, my father always complied with his child support obligations and also gave additional financial support over and above his legal responsibilities.
  • For the last 24 years of my father’s life, my mother’s attitude towards him was one of relentless persecution as she pursued her stated aim of making his life a misery. My mother also refused to let my father see me unless he paid ever increasing amounts of child support. Once, she even accused him of planning to kidnap me and sought an apprehended violence order against him. The proceedings were dismissed and my father described these events as “deeply humiliating”. My mother once wrote to my father that unless he paid my university fees, she would “personally make what is left of [his] wretched life not worth living”.
  • My mother’s financial problems were partly attributable to her pursuit of costly and unsuccessful legal proceedings against my father, including an unsuccessful claim for damages for breach of professional duties.
  • My mother claims that the circumstances of the break up of her marriage to my father caused her psychiatric disabilities which have impaired her ability to gain employment. However, the only evidence she has provided to support this are psychiatric reports that are over 20 years old. There is also no evidence that my mother suffered from any psychiatric condition at the date of the hearing.
  • Given the “clean break” after my parents’ separation and my mother’s behaviour towards my father, my father did not owe a moral obligation to make provision for her. The court must overturn the trial judge’s decision.
The case for the ex-wife, Ms L
  • Under succession law, a family law settlement does not preclude me from making a family provision claim, and my ex-husband still had a moral obligation to make provision for me.
  • When the Family Court divided up our assets, the judge assumed that I would complete my university studies and secure employment. This did not eventuate. My care responsibilites towards our daughter precluded me from securing employment until 2000, at which time I was in a motor vehicle accident that prevented me from working subsequently.
  • After the family law settlement, my ex-husband accumulated the substantial assets which ultimately became his $5 million estate. He was only able to do this because I raised our daughter all on my own, with minimal involvement from him.
  • He also caused the circumstances of need that I find myself in. His conduct during our relationship and our marriage breakdown left me with deep psychological scars that have impaired my mental functioning. For example, he engaged in inappropriate sexual conduct towards me while I was a patient, for which the NSW Medical Board made a finding of professional misconduct against him.
  • Although the psychiatric reports before the court are old, they establish that my ex-husband’s conduct caused me to develop a psychiatric illness that disabled my mental functioning. As the psychiatrist opined, my ex-husband was in a position of power and authority over me and the trauma experienced by me “is thus much more complex and qualitatively different from the trauma of a normal marriage breakdown since it represents a betrayal and an exploitation by a person in a fiduciary relationship”.
  • It’s true that my behaviour towards my ex-husband was hostile, but this was caused by my psychiatric disabilities and should not preclude me from making a family provision claim.
  • It was wrong of my ex-husband to leave everything to our daughter and nothing to me. There is something unbecoming about an arrangement under which I am left in circumstances of considerable need, reliant on a social security pension, whilst our daughter, whom I raised on my own, inherits in excess of $5 million.
  • Given my husband’s role in causing my position of need and the size of his estate, he had a moral obligation to make provision for me, and the court should dismiss my daughter’s appeal.

So, which case won?

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Expert commentary on the court's decision

Simone Timbs
Simone TimbsLawyer
“Ultimately, when considering whether a person might have a moral obligation to make testamentary provision for their former spouse, there are no absolutes and all the circumstances of the particular case have to be taken into account.”
Court finds in favour of daughter, overturning $750,000 payment to ex-wife

In Lodin v Lodin [2017] NSWCA 327, the NSW Court of Appeal allowed the appeal of the daughter, Rebecca Lodin.

The court set aside the trial judge’s order that Rebecca’s mother, Ms Magdalena Lodin, receive $750,000 from the estate of her ex-husband, Dr Mohammad Masoud Lodin.

Former spouse can apply for family provision if factors warrant making of application

Under the section 57(1)(d) of the Act, a former spouse of a deceased person is eligible to apply for a family provision order.

Under section 59 of the Act, the court may make a family provision order in favour of that former spouse if three conditions are satisfied. One of these, as set out in section 59(1)(b), is that the court is satisfied that, having regard to all the circumstances of the case, there are factors which warrant the making of the application.

When do factors warrant a former spouse making an application?

The court laid out several propositions derived from previous caselaw that inform whether a former spouse has established that there are factors warranting the making of a family provision application.

While in most cases a final property settlement in the Family Court will terminate any moral claim of a former spouse to provision from the deceased’s estate, paramountcy will not always be given to the policy of a “clean break”.

The court found it difficult to see how a former spouse could establish that there were factors warranting the making of an application simply because the marriage once existed and now that person has unmet financial needs. This is so even if the estate is relatively large.

Something more is ordinarily needed, and because the facts of each relationship are unique, the circumstances which may give rise to a family provision claim will vary from case to case.

One factor which the court said is obviously relevant is the nature of the relationship between the ex-spouse and the deceased. In particular, it is relevant whether there were features of the relationship that created a moral obligation on the deceased to make testamentary provision for the ex-spouse.

Trial judge erred in concluding factors warranted making of application by ex-wife

The Court of Appeal found that the primary judge erred in concluding that there were factors warranting the making of Ms Lodin’s application.

First, the trial judge erred in finding that the “unbecoming” passing of the whole estate to the daughter, Rebecca, was a factor warranting the making of a family provision application.

The court said that a deceased person does not have “a moral responsibility to make testamentary provision for a former spouse simply because the estate is large and the sole beneficiary of the estate under the will or on an intestacy is a member of the deceased’s family for whom the former spouse had some responsibility”.

Secondly, the court found that it was not open to the primary judge to find that Dr Lodin was responsible for his ex-wife’s strained financial circumstances. Nor was it open to the judge to find that Ms Lodin’s persecution of Dr Lodin was due to a disability induced by his conduct.

According to the court:

It is one thing, for example, to find that a deceased’s abusive conduct towards his or her former spouse during the marriage caused psychiatric or physical disabilities that impaired the former spouse’s ability to gain employment. It is quite another to find that the former spouse was deeply distressed and bitter at the breakdown of the marriage and that these feelings induced the former spouse to engage in vindictive and possibly financially self-destructive behaviour.

Factors warranting making of family provision application not established

After finding that the trial judge erred, the court reconsidered the case.

The court concluded that the evidence did not establish factors warranting Ms Lodin’s application for a family provision order.

In arriving at this conclusion, the court considered a number of matters.

These included that the marriage was only short and ended 25 years before the hearing of the family provision claim.

The 1992 financial property settlement orders were also an important consideration counting against Ms Lodin’s claim. Dr Lodin had provided substantial child support for his daughter, as well as giving additional financial support over and above his legal responsibilities.

Ms Lodin’s financial circumstances were largely due to injuries sustained in motor vehicle accidents and her legal costs in pursuing Dr Lodin. The court said that Dr Lodin could not be said to have come under a moral duty to provide for her because of injuries entirely unrelated to their relationship.

Also, there was no evidence that Ms Lodin’s persecutorial behaviour towards Dr Lodin was caused by a psychiatric disability induced by Dr Lodin’s conduct. Therefore, her conduct counted against her establishing a moral duty owed by Dr Lodin.

Each family provision case is unique

The court emphasised that what a former spouse must show to establish the deceased’s moral obligation “cannot be defined with precision since all the circumstances have to be taken into account”.

Further, while some cases might be straightforward, other cases might involve more difficult evaluative judgment.

In the circumstances of this case, the court was not satisfied that Dr Lodin had a moral obligation to make testamentary provision for Ms Lodin.

The court, did, however, provide some examples of where the circumstances might suggest a moral obligation.

Although the size of Dr Lodin’s estate was not considered relevant, the court noted that the outcome might be different in circumstances where the deceased had failed to comply with child support obligations.

The court said that a former spouse might also establish a moral obligation on the part of the deceased where the parties, although divorced, had not reached a financial settlement prior to the deceased’s death.

Where the deceased physically or sexually abused the former spouse, causing him or her to suffer a disability and impairing the capacity to earn an adequate income, the court said that the former spouse might be able to establish a moral duty.

Ultimately, when considering whether a person might have a moral obligation to make testamentary provision for their former spouse, there are no absolutes and all the circumstances of the particular case have to be taken into account.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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