The Supreme Court of New South Wales recently dealt with a claim for family provision made by a former wife of a deceased, and even in circumstances where the plaintiff and the deceased had been involved in a property settlement some 25 years prior to the deceased’s death, the Court ordered that the plaintiff receive a legacy of $750,000 out of an estate valued at just over $5,000,000. (Lodin v Lodin [2017] NSWSC 10)

Claim by a former spouse

Under the Succession Act 2006, a former spouse may make a claim for family provision under section 57(1)(d). In order for the Court to determine whether a former spouse can be considered an “eligible person”, it must first determine whether there are factors which warrant the making of the application. All of the circumstances of the case are to be taken into account in deciding whether such factors exist.

The accepted judicial test in relation to this determination is as follows:

Such factors which, when added to the facts which render the applicant an eligible person, give him or her status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased.

In order to better understand the Judge’s reasoning in this case, it is first necessary to provide some background on the relationship between the plaintiff and the deceased.


The deceased, Dr Mohammad Lodin (“Mr Lodin”) was a medical practitioner. The plaintiff first met Mr Lodin in 1984 when she was his patient. Over the coming years, the plaintiff and Mr Lodin commenced a relationship, and subsequently married and began cohabitating in September 1988. One child was borne of their relationship, Rebecca Lodin (“Rebecca”). The plaintiff and Mr Lodin separated under the one roof after only 18 months, and remained living at the same residence for a further 10 months and were eventually divorced in December 1995.

It is relevant to note here that Mr Lodin died intestate, that is, without a valid will and according to the laws of intestacy, his daughter Rebecca was entitled to the whole of his estate, and was made the defendant to the plaintiff’s claim after being granted Letters of Administration of Mr Lodin’s estate.

The plaintiff and Mr Lodin ultimately resolved the subsequent family court proceedings with a judgment which awarded the plaintiff approximately 38% of the asset pool of her and Mr Lodin. This equated to around $164,500. The plaintiff was then unsuccessful in an appeal to the Full Court of the Family Court.


Justice Brereton spent considerable time analysing the particular family law property settlement between the plaintiff and Mr Lodin in his judgment.

His Honour found that whilst a property settlement following a divorce or separation will usually pose a significant obstacle to overcoming the factors warranting hurdle as a property settlement is designed so as to allow each party to start life afresh, it is not a conclusive factor, and it is necessary to look at whether there exists an “undischarged moral obligation” to the applicant for family provision.

The Court stated, in reference to the years following the property settlement between the plaintiff and Mr Lodin:

While the plaintiff struggled, the deceased prospered. Untrammelled by responsibility for a wife or child, he accumulated assets which by his death exceeded in value more than 10-fold those at the time of the matrimonial settlement. His ability to do this was facilitated by the plaintiff’s assumption of responsibility for the care of the defendant (who was not quite 6 years of age) until she became independent at the age of 21, for whom she provided accommodation, food, care, supervision, transport, guidance and support.

The Court also found that the plaintiff was in significant financial need at the time of the hearing, itself a key consideration to the Court in deciding whether any provision should be made for an applicant.

In awarding a legacy of $750,000 to the plaintiff, the Court stated the following:

The unusual and enduring impact of the relationship and marriage on the plaintiff, her care responsibility for the defendant for 15 years after the matrimonial property settlement and associated indirect contribution to the deceased’s estate, the respective post-divorce deterioration in her circumstances and great improvement in those of the deceased, the relative paucity of the matrimonial estate at the time of the property settlement compared to the amplitude of resources now available, and her current circumstances of need which are in part attributable to her relationship and marriage with the deceased, and where the only other claim on his testamentary bounty is that of the defendant for whom ample will remain after making proper provision for the plaintiff, amount to circumstances which made the plaintiff, at the time of the deceased’s death, a person who ought to have been an object of testamentary recognition by him, and thus constitute circumstances warranting the making of her claim.

What can be taken from this case?

Probably the most important thing that can be drawn from this case is that, even in circumstances where a deceased person and their former spouse have had a property settlement, that property settlement, whilst an important consideration, while not be conclusive in determining whether there are factors warranting the making of an application.

It is important to analyse all of the circumstances of the case before a valued decision can be made on whether or not a former spouse’s claim has prospects of success.

Turner Freeman specialist Wills & Estates lawyers

Whether you are a former spouse considering whether to make a claim, or an executor of an estate faced with a claim by a former spouse, Turner Freeman have experienced and specialist Wills & Estates lawyers who can assist you. Please call 13 43 63 to speak with your nearest Turner Freeman office.