Court update: family provision

There have been a number of very interesting cases in recent times determined in the field of Family Provision Claims in the Court of Appeal. Family Provision claims are claims brought by certain eligible people who are unhappy that they have been left out of a will or have not received what was appropriate provision for them in the will.

These cases have resulted in the reduction in the circumstances in which certain eligible persons can claim and in limiting the generosity of the Court. One such case which has received some attention in the media and was recently the subject of an application for special leave to the High Court was Lodin v Lodin [2017] NSWCA 327. This case involved a claim by an ex-wife of the deceased (a doctor) some 25 years after their brief marriage of just 1 year had ended. There had been a property settlement in which the claimant had faired very well, and the deceased maintained all of his financial obligations throughout the child’s life including the payment of private school fess. The child of the relationship was the beneficiary under the deceased’s will and stood to inherit an estate worth around $5M.

Unfortunately, the claimant had been quite nasty to the deceased after the breakdown of their relationship, threatened to make his life not worth living and making false complaints to the Health Department.

Despite all of this the Court at first instance decided that the deceased hadn’t discharged his moral duty to the claimant and awarded $750,000. On appeal by the daughter, the Court decided that secondary claimants such as ex-spouses were not to be considered the natural object of testamentary intention, and must show social, domestic and moral obligation beyond mere familial relationship. An example might be where a couple had not reached a financial settlement or where the claimant had carried the full financial and emotional burden of raising the child/children.

The claimant was awarded nothing in the Court of Appeal.

We successfully ran a case for an ex-spouse recently who had raised the child of the relationship on her own. The father had limited involvement in the child’s life and paid nothing towards the costs of her upbringing. The deceased left his estate to another subsequent short-term spouse with whom he remained friends after the relationship and gave nothing to either his daughter or ex-spouse. Thankfully we were able to ensure a satisfactory outcome for our client, and the daughter.

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