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Lodin v Lodin

Lodin v Lodin

Case [2017] NSWSC 10 25 January 2017

Family Provision

Indirect Contribution

Size of Estate

Absence of Competing Claim

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10
Hearing dates: 31 May, 1 and 2 June 2016
Date of orders: 25 January 2017
Decision date: 25 January 2017
Jurisdiction: Equity - Family Provision List
Before: Brereton J
Decision:
Plaintiff to receive legacy of $750,000 from estate of deceased.

Catchwords: SUCCESSION – Family Provision – application by former wife – where relationship arose in course of professional doctor/patient relationship – cohabitation of 18 months – application made 25 years after separation and 23 years after final matrimonial financial settlement – where applicant had care responsibility for 6 year old child until 21 – where applicant embarked on course of hostile action against deceased – where applicant’s earning capacity subsequently affected by motor vehicle accident – where deceased prospered financially – where deceased dies intestate with daughter only beneficiary of $5 million estate – whether factors warranting application – held, enduring impact of relationship on applicant, applicant’s indirect contribution to deceased’s estate, size of estate and absence of competing claim provide factors warranting – proper provision would enable acquisition of reasonably appropriate home, living expenses for life expectancy, and small fund for contingencies
Legislation Cited: (CTH) Family Law Act 1975, s 44, s 79, s 79A, s 81
(NSW) Family Provision Act 1982, s 31
(NSW) Succession Act 2006, s 57(1)(d), s 59(1)(b), s 59(3), s 59(4), s 60, s 61, s 95
(NSW) Probate and Administration Act 1898, s 84A
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Burke v Burke [2015] NSWCA 195
Churton v Christian (1988) 13 NSWLR 241
Dawes & Dawes (1990) FLC ¶92-108
Dijkhuijs v Barclay (1988) 13 NSWLR 639
Ferraro & Ferraro (1993) FLC ¶92-335
Fulop Deceased, Re (1987) 8 NSWLR 679
Hastings v Hastings [2010] NSWCA 197
Holcombe v Holcombe [1993] NSWCA 137.
Marras, In the Estate of the late Anthony [2014] NSWSC 915
O'Shaughnessy v Mantle (1986) 7 NSWLR 142
Singer v Berghouse (No 2) (1994) 181 CLR 201
Smith v Smith (1986) 161 CLR 217
Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported)
Vigolo v Bostin (2005) 221 CLR 191
Wentworth v Wentworth (SCNSW, Bryson J, 14 June 1991, BC9101896)
Category: Principal judgment
Parties: Magdalena Lodin (plaintiff)
Rebecca Lodin (defendant)
Representation:
Counsel:
P W Bates (plaintiff)
L Ellison SC w P Carr (defendant)
Solicitors:
James Antonenas (plaintiff)
Craddock Murray Neumann (defendant)

File Number(s): 2015/169992

Judgment

The late Dr Mohammad Masoud Lodin died between 9 and 12 June 2014, aged 65 years. Letters of administration of his intestate estate were granted on 19 November 2014 to his daughter the defendant Rebecca Lodin, born 8 February 1986, to whom the whole of his substantial estate of more than $5 million net devolves upon intestacy. By summons filed on 9 June 2015, his former wife the plaintiff Magdalena Lodin – Rebecca’s mother – whom he had married on 19 September 1988, and divorced on 29 December 1995, having separated more…

Grounds of appeal

[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

Details

AGLC: Lodin v Lodin [2017] NSWSC 10
Case: [2017] NSWSC 10
Decision Date: 25 January 2017

CaseChat Overview and Summary

In the case of Lodin v Lodin, the dispute arose between the former wife of the deceased, the applicant, and the deceased's estate regarding the application for family provision under the Succession Act. The relationship between the parties began as a professional doctor/patient relationship, later evolving into cohabitation for 18 months. The application was made 25 years after the separation and 23 years after the final settlement of the matrimonial financial arrangements. During this period, the applicant had the care responsibility for their six-year-old child until the child turned 21. The applicant also pursued hostile actions against the deceased, which affected their earning capacity, compounded by a motor vehicle accident. Meanwhile, the deceased experienced significant financial success, leaving an estate of $5 million to their daughter, the sole beneficiary. The central legal issues involved whether the factors presented by the applicant warranted an application for family provision despite the protracted period since separation and the prior financial settlement.

The court was tasked with determining whether the enduring impact of the relationship on the applicant, the applicant's indirect contribution to the deceased's estate, the substantial size of the estate, and the absence of competing claims provided sufficient grounds for a family provision application. The court noted the significant time that had elapsed since the separation and the prior financial settlement but recognised the profound and lasting impact of the relationship on the applicant. The court also acknowledged the applicant's indirect contributions to the deceased's financial success, despite the passage of time. Furthermore, the court considered the size of the estate and the lack of competing claims as critical factors in favour of the applicant's application.

The court concluded that the factors presented warranted the application for family provision. The proper provision would enable the applicant to acquire a reasonably appropriate home, secure living expenses for their life expectancy, and establish a small fund for contingencies. The decision underscores the importance of considering the broader context of the relationship and its enduring impact, even in the face of significant time elapsed and prior financial arrangements. The final orders granted the applicant's application for family provision, providing her with the means to meet her reasonable domestic needs.

Orders