Basten JA at [1]; White JA at [4]; Sackville AJA at [16]
Decision:
1. Appeal allowed. 2. Set aside order 1 made by the primary Judge on 25 January 2017. 3. In lieu thereof order that the summons filed on 9 June 2015 be dismissed. 4. Set aside order 2 made by the primary Judge on 25 January 2017. 5. In lieu thereof order that: (a) the plaintiff pay the defendant’s costs of the proceedings on the ordinary basis; (b) the defendant’s costs, on the indemnity basis, insofar as not paid by the plaintiff, be paid or retained out of the Deceased’s estate. 6. The moneys held in the controlled moneys account referred to in the undertakings noted on 4 May 2017 be released to or at the direction of the appellant. 7. The respondent pay the appellant’s costs of the appeal on the ordinary basis. 8. The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:
SUCCESSION – family provision – application for family provision order under s 57(1)(d) of the Succession Act 2006 (NSW) by former spouse of deceased – primary judge awarded $750,000 legacy out of estate valued at about $5 million – whether factors warranted the respondent making the application within s 59(1)(b) of the Succession Act 2006 (NSW) – whether respondent a natural object of testamentary recognition in circumstances where marriage had ended 25 years previously and financial affairs resolved by final orders of Family Court
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Lodin v Lodin
Sign in free to access the full text
Details
AGLC
Lodin v Lodin [2017] NSWCA 327
Case
[2017] NSWCA 327
Decision Date
CaseChat Overview and Summary
The appeal concerned an application for a family provision order under section 57(1)(d) of the *Succession Act 2006* (NSW) brought by the former spouse of the deceased. The primary judge had awarded the former spouse a legacy of $750,000 from an estate valued at approximately $5 million. The appellant, the executor of the estate, challenged this decision.
The central legal issues before the Court of Appeal were whether the respondent, as a former spouse whose marriage had ended 25 years prior and whose financial affairs had been resolved by final Family Court orders, was a "natural object of testamentary recognition" for the purposes of section 59(1)(b) of the *Succession Act 2006* (NSW). The court was required to consider whether the circumstances warranted the respondent making such an application.
The Court of Appeal allowed the appeal, setting aside the primary judge's order for the legacy. The court reasoned that the long period since the dissolution of the marriage and the final resolution of financial matters in the Family Court meant the respondent was not a natural object of testamentary recognition. The court found that the primary judge had erred in making the provision. Consequently, the summons for family provision was dismissed. The court also made orders regarding costs, with the respondent to pay the appellant's costs of the appeal on the ordinary basis and the appellant's costs of the proceedings to be paid by the respondent, with a portion to be retained out of the deceased's estate on an indemnity basis.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 1 made by the primary Judge on 25 January 2017.
3. In lieu thereof order that the summons filed on 9 June 2015 be dismissed.
4. Set aside order 2 made by the primary Judge on 25 January 2017.
5. In lieu thereof order that:
(a) the plaintiff pay the defendant’s costs of the proceedings on the ordinary basis;
(b) the defendant’s costs, on the indemnity basis, insofar as not paid by the plaintiff, be paid or retained out of the Deceased’s estate.
6. The moneys held in the controlled moneys account referred to in the undertakings noted on 4 May 2017 be released to or at the direction of the appellant.
7. The respondent pay the appellant’s costs of the appeal on the ordinary basis.
8. The respondent have a certificate under the Suitors’ Fund Act 1951 (NSW).