At Coode & Corry solicitors we always advise clients who have finalised property proceedings, and/or divorce proceedings to make a Will and properly arrange your Estate. If you do not make a Will following property proceedings, you run the risk that your former spouse may make a claim on your Estate.
In the recent case of Lodin & Lodin  NSWSC 10, decision 25 January 2017 (http://www.austlii.edu.au/au/cases/nsw/NSWSC/2017/10.html) the Court held that the former spouse of the deceased who was a doctor was entitled to $750,000 from the deceased’s net estate even though the parties had completed matrimonial financial settlement almost 25 years prior to the date of death.
The then Lawyer for the deceased had urged the deceased to make a Will, and had drafted a Will which was never properly executed by the deceased. As the deceased did not leave a Will, according to the rules of intestacy the daughter of the deceased was to be the sole beneficiary of the net estate, which was approximately $5 million.
The former spouse of the deceased made a family provisions application to the Supreme Court of NSW. The Court held that the former spouse was entitled to a portion of the deceased estate for the following reasons:
- At the time of financial separation the net matrimonial property assets were approximately $350,000 and had increased considerably;
- That the former spouses care of the daughter of the relationship had made an ongoing indirect contribution to the deceased estate, as the deceased was “freed from the burden of providing care for his daughter and former wife” and able to earn a substantial income;
- That three motor vehicle accidents, post financial settlement had left the former spouse in a position where she was unable to earn a decent income, and was surviving on welfare;
- That taking into account any payment to the former spouse from the deceased’s estate, the daughter of the relationship and beneficiary of the estate would still inherit an ample sum.
It appears that the circumstances surrounding the beginning of the relationship also impacted the Court's decision. In 1993, Ms Lodin made a complaint to the NSW Health Department Complaints Unit about the deceased. Ms Lodin's complaint, which alleged the deceased had an inappropriate sexual relationship with her while she was his patient, led to the deceased being reprimanded for unsatisfactory professional conduct. We note that this claim is not simply a claim made by Ms Lodin, but a third party (the NSW Health Department) concluded that the inappropriate sexual relationship did indeed occur, and that it was unsatisfactory conduct for a doctor.
If you have yet to make a Will and get advice on Estate planning, or update your Will following finalisation of family property proceedings, we urge you to make an appointment to update your Will to ensure your estate is left to the people you intend it to be left to.
This article was written by Hamish Williams who, in addition to family law, has been assisting our clients with Wills and Estate matters for a number of years now. Hamish has assisted clients in everything from drafting simple wills, to more complex wills using testamentary trusts, and Powers of Attorney and Appointments of Enduring Guardian. Hamish has also assisted clients in obtaining Grants of Probate and Letters of Administration and administering both simple and complex estates.
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