Lodin v Lodin

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.