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CAN MY EX MAKE A CLAIM TO MY ESTATE?

In the recent NSW case of Lodin v Lodin, an ex-spouse made a claim to her deceased ex-husband’s estate, under category (d) of s57(1) of the Succession Act 2006 (NSW)even though they had been legally divorced for almost 20 years. 

At the time of the divorce, the Family Court made orders for an equitable property settlement. The ex-wife received around 38% of the marital asset pool. The couple had a young child at the time, and Dr Lodin paid child support. The ex-wife was relentlessly hostile against Dr Lodin, even accusing him of family violence and the sexual abuse of their daughter. These accusations were not pursued.

In 2014, Dr Lodin died intestate, which means without a valid Will. He had instructed his solicitors to prepare a Will specifically excluding his ex-wife, but failed to execute it before he died.

Intestate estates are distributed in accordance with legislation – in South Australia this is the Administration and Probate Act. Whilst the law differs from State to State, generally those entitled to the estate are the spouse and children, and if there are none living then other family members of the deceased.

Accordingly, Dr Lodin’s daughter was deemed to be the sole beneficiary of his more than $5 million estate. The ex-wife told the Court that she had struggled financially since the divorce, and that Dr Lodin had prospered because she had assumed the responsibility of raising their daughter, from whom the ex-wife was now estranged.

The Court initially awarded the ex-wife $750,000.00 plus costs, on the basis that it was unfair for the daughter to inherit the entire $5 million estate whilst her mother struggled to live off government benefits.

This decision was later overturned on the basis that Dr Lodin had no obligation to provide for his ex-wife from his estate. The Family Court had dealt with the marital assets equitably at the time of the divorce. Dr Lodin’s increased wealth after the divorce was of no significance Dr Lodin’s daughter was entitled to the whole estate. further, and importantly, the ex-spuse and the deceased had concluded property settlement by financial orders in 1992.

The Court of Appeal relied on the following matters:

* The deceased had meticulously complied with his child support obligations since separation;

* The respondent’s financial circumstances were largely attributable to injuries from a series of motor vehicle accidents, and to legal costs incurred by her relentless pursuit of the deceased; and

* There was no evidence establishing a causal link between the domestic relationship and her difficulties at the hearing.

In South Australia, getting a divorce does not revoke your Will. However, divorcing your partner automatically revokes any gift in the Will to your former spouse (unless the Will states otherwise).

After separation, it is important to ensure that your Will is up to date. Whilst creating a new Will does not affect your former spouse’s right to make a claim under inheritance legislation, it will help to avoid a prolonged dispute paid for from your estate funds.

Your Will should be very specific to your circumstances and wishes. It is important that your solicitor considers all the kinds of property you may own, and all of the people who may have an interest or claim to your estate. It is never too early to make a Will. Don’t put it off any longer. Contact us today to discuss your estate plans and prepare a proper Will.