In a previous article we discussed the case of Lodin and Lodin; the estate of Dr Mohamed Masood Lodin  NSWSC 10. In that matter at first instance the Judge awarded the divorced wife a sum of $750,000.00 from the estate of her former husband although the parties had been divorced for some 25 years and the wife had received a sum of money pursuant to final orders made in the Family Court. In summing up Justice Brereton said that “This is not an easy case ......judicial minds may differ on it”.
Since judgment was delivered in Lodin & Lodin several other family provision cases have also allowed some rather generous awards to applicants. Notably in the Estate of MPS, deceased  NSWSC 482 a man who had a friendship of sorts for a period of only two years with the deceased prior to the deceased’s death was awarded a sum of $550,000.00 from her estate as there was held to be a “close personal relationship” between the applicant and the deceased at the time of her death.
Both of these cases were overturned by the NSW Court of Appeal at the end of 2017. On appeal the Appeal Judge’s found that people who are known as secondary claimant’s i.e "former spouses, grandchildren or people claiming to have a close personal relationship with the deceased" are not usually regarded as being persons who would regularly inherit from a deceased estate. Therefore the onus is on those applicants to show that there is a social, domestic or moral obligation on the deceased to have provided for them in their Will. This means that the mere fact that someone is a grandchild, or former spouse, of the deceased is not enough.
As a consequence of the NSW Court of Appeal decisions it appears that the Court is now less likely to be so generous in awarding monies to be paid to a claimant in a Family Provisions Claim where they are secondary claimants.
The Court will take into account multiple factors in determining whether or not the claimant should be awarded any provision from the deceased’s estate and not rely on single enquiries.
If you believe you have been unfairly left out of an estate and you are an entitled person, i.e. a spouse, former spouse, child of the deceased, grandchild of the deceased or someone who had a close personal relationship with the deceased please contact our office to have a free 30 minute consultation with our estates solicitor, Hamish Williams.
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