Which case won?

The case for the ex-wife
  • My ex-husband was able to accumulate the wealth he did precisely because I did all the caring for our daughter after our divorce. The breakup also had long lasting consequences for me that further reduced my ability to generate wealth.
  • My ex-husband understated his income in the Family Court proceedings, which amounts to fraud, suppression of evidence and/or non-disclosure. I would have received a much larger settlement if he had told the truth.
  • My ex-husband had an obligation to leave me a share of the estate to atone for his professional misconduct in engaging in an improper sexual relationship with me while he was my physician, causing me psychiatric injury.
  • I have significant health problems and substantial financial need. It’s unfair that my daughter should get everything when I was the one who raised her on my own.
  • For all these reasons my ex-husband had a moral obligation to provide for me. His estate is ample and warrants provision being made for me.
The case for the daughter as administratrix of the estate
  • Following separation and divorce, my parents never resumed their relationship and neither was dependent on the other.
  • My father was wealthy because of prudent decisions and many years of hard work, whereas my mother’s financial predicament is due to her spending vast sums on unsuccessful litigation and making poor lifestyle choices.
  • If my mother genuinely believed that my father had understated his income in the Family Court proceedings or that she had rights against him for psychiatric injury, there were legal avenues available to her that she could have taken while he was alive, but she did not do this.
  • My father had always complied meticulously with his obligations to provide financial support for me, despite my mother’s persecution of him by all imaginable means.
  • My father had no further obligation, moral or otherwise, to provide for his ex-wife after their divorce was finalised by the court.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a17%
case b83%

Expert commentary on the court's decision

Kate Byrne
Kate ByrneLawyer
“The former wife’s financial need, medical problems, inability to support herself and poor relationships with others were not in any way related to the conduct of the deceased or her relationship with him.”
First instance decision awards ex-wife $750,000 plus costs

At first instance, in the case Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10, the ex-wife was awarded $750,000 plus costs. Even though there had been a property settlement between the parties following their separation, the court found there were factors that warranted the making of the former spouse’s application.

The ex-wife had substantial financial need. Following the property settlement, the ex-wife had struggled, while the deceased had prospered. He had accumulated significant assets which greatly exceeded those at the time of the property settlement.

Ex-wife’s care of their child facilitated accumulation of wealth by deceased

The deceased’s ability to accumulate wealth was facilitated by his ex-wife’s assumption of responsibility for the care of their child (who was not quite six years of age at the time), until she became independent at the age of twenty-one.

The court also took into account the fact that the break-up of the marriage had unusual and long-lasting consequences for the ex-wife.

Noting that there was “something unbecoming” about an arrangement which would leave the ex-wife in financial need, reliant on a social security pension, while the daughter whom she raised would inherit in excess of $5 million, the court decided that the deceased’s estate was ample and this warranted provision being made for his ex-wife.

Court of Appeal overturns Supreme Court decision

In the case Lodin v Lodin [2017] NSWCA 327, the estate of Dr Lodin appealed the Supreme Court decision on several grounds, among them that the decision was “so divorced from reality, so unrepresentative of community standards or expectation, and so totally inconsistent with the objects and principles of family provision legislation as to be wrong and thus deserving of appellate correction.”

The court allowed the appeal and dismissed the proceedings by the ex-wife. An order was made for the former wife to pay her daughter’s costs.

Deceased had no moral obligation to leave anything to ex-wife in will

The court found the difficulty with the decision at first instance is that it presumed the deceased had a moral responsibility to make testamentary provision for his former wife because his estate was significant and the sole beneficiary of his estate, being his daughter, was a member of the deceased’s family for whom the former wife had had responsibility.

According to the Court of Appeal, the fact that the deceased’s former wife was responsible for raising their child did not create any social, domestic or moral obligation for the deceased to make testamentary provision for her.

Another factor which the court took into account was the fact that the ex-wife had made serious allegations against the deceased which were not upheld.

The financial position between the deceased and the former wife had been determined by Family Law Court orders made in 1992 and the deceased had always complied with his obligations to provide financial support for his daughter.

The former wife’s financial need, medical problems, inability to support herself and poor relationships with others were not in any way related to the conduct of the deceased or her relationship with him.

For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.

For more information about intestate estates, please see How do you deal with an intestate estate? Contesting an estate without a will.

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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