Unexpected claims against an estate

Posted on Nov 6, 2017 by Terry Morgan   |   Categories: Wills & Estates

Most people assume that the end of a relationship, divorce papers and, a property settlement marks the end of their legal obligations to that person. In the eyes of the law however, that is not always the case.

Family/succession law has the ability to extend well beyond the end of a relationship giving a former spouse or de facto partner the ability to make a claim over a deceased’s estate.

This was the case in the unusual family provision outcome in the 2017 case Lodin v Lodin held in the New South Wales Supreme Court.

In this case the former wife of the deceased (the plaintiff) made a claim under s7(1)(d) of the Succession Act 2006 (NSW) over the deceased’s estate despite having been separated for over 25 years – the plaintiff received $750,000 of the estates 5 million dollar value.

In order for a former spouse to make a claim for family provisions the court must determine if that person is an ‘eligible person’. The court will also determine if there are any factors that warrant an application being made.

In this case the deceased was a medical practitioner and met his former spouse in 1984 while she was his patient. They commenced a relationship, had one child and got married. The couple separated under one roof after 18 months of cohabitation and filed for divorce in 1995.

Over the course of the 23 years before the deceased’s death, his former spouse was described by the court as being relentlessly hostile towards him, on one occasion threatening she “would make what was left” of his “wretched life not worth living”. She also reported the deceased to NSW Health department for the inappropriate doctor/patient relationship which they began their relationship under.

The deceased passed away with no will and under the laws of intestacy his daughter was entitled to the whole of his estate.

The court determined that the plaintiff had financial and medical challenges and that the estate was ample enough to provide for her. Further the court found that the plaintiff contributed to the deceased’s estate by raising their daughter, who did not object to her mother’s claim. The court also noted that the deceased’s estate had grown significantly since the divorce.

From this case it can be concluded that if you want to ensure your estate goes to whom you want it to go to, it’s essential to have a will drawn up.

If you are an executor and a former spouse is making a claim or you are a former spouse looking to make a claim, it is imperative that you seek advice from a specialist wills and estates lawyer.