Jul 132018
 

Been left out of a will? Not received what you believe you are entitled to receive? You could be eligible to make a family provision claim.

Family provision claims must be made within 12 months of the death of your loved one and can only be made by ‘eligible persons’. This includes current or former spouses, de facto partners, children, dependent persons or those living in a close personal relationship at the time of death.

Factors the court will take into consideration

There are a large range of factors courts will consider when determining if a family provision order should be granted. Courts may consider the nature of the relationship, financial circumstances, dependency on the deceased and the character of the applicant.

It is a non-exhaustive list and the court may take in any factor they deem relevant. This is exemplified in the recent case of Lodin v Lodin [2017] NSWCA 327.

Facts

Ms Lodin (the plaintiff) was the former married spouse of Dr Lodin (the deceased), and together they had one daughter, Rebecca Lodin (the appellant). After their divorce the former spouse continuously disputed the financial settlement and launched numerous legal applications against Dr Lodin.

More than 20 years after their divorce Dr Lodin died intestate, leaving his daughter the sole beneficiary of his $5 million estate. Upon his death, Dr Lodin’s former spouse successfully sought a family provision order and was granted $750,000.

The former spouse had sought compensation and received it because of:

  • the enduring impact of her relationship with Dr Lodin;
  • her care for their daughter;
  • his relatively small collection of assets at the time of separation and settlement as compared to his flourishing finances gained from not assuming full time care of their daughter; and
  • because the sole claimant to his estate was their daughter.

On appeal, the daughter argued, and it was held, that the primary Judge had erred in granting the family provision order. It was held that a former spouse cannot automatically be presumed to be a natural object of testamentary recognition. Furthermore, it was found that the deceased held no moral obligation to his former spouse as financial affairs between the two parties had been settled in the Family Court’s final orders and Dr Lodin had fulfilled his obligations of financial support for his daughter.

Orders

  1. The orders of the primary Judge be set aside;
  2. Ms Lodin pay the appellant’s costs from the original proceedings;
  3. Ms Lodin pay the appellant’s costs of the appeal.

Not quite “The Big Day” this former spouse had in mind.

What does this mean for you?

When making your will, always consider those that might be able to make a claim on your estate. In particular, get advice about former spouses as they may or may not have a claim to your estate. Such persons will not always be a natural object of testamentary recognition, but they might still make a claim that depletes your estate. You should consult an expert to discuss the particulars of your case and how a court would likely rule if a family provision claim is made.

Contact Peter McNamara today for advice on making a family provision claim.

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