NSW Supreme Court judge Paul Brereton conceded it was “not an easy case, and I confess that judicial minds may differ on it” when he awarded Magdalena Lodin $750,000 from the estate of her former husband.
He was right.
The NSW Court of Appeal has overturned the judgment in favour of Ms Lodin, who divorced Dr Mohammad Masoud Lodin more than two decades ago and embarked on what the court described as years of “relentless persecution” of the deceased.
Acting Justice Ronald Sackville said the evidence in the case did not justify Ms Lodin’s family provision claim at the expense of her daughter Rebecca, the sole beneficiary of her father’s estate, which was worth more than $5 million.
Ms Lodin’s persecution of her ex-husband included threatening in a letter to “make what was left” of his “wretched life not worth living” and told him he would “feel the wrath of Allah”.
Ms Lodin, who lived with her former husband for 19 months before their separation in 1990, also made allegations of sexual misconduct by Dr Lodin to the police and the NSW Health Department Complaints Unit.
Justice Sackville also said the allegations made by Ms Lodin against her ex-husband had not been proven, apart from the claims of professional misconduct.
He said Ms Lodin’s vindictive behaviour towards Dr Lodin should count against her entitlement for money from his estate because there was no evidence it was a result of psychiatric illness or caused by the deceased’s conduct.
Justice Sackville said a matrimonial financial settlement made by the Family Court in 1992 was “an important consideration counting against her claim”.
“The starting point is that the marriage effectively ended a quarter of a century before the hearing of [Ms Lodin’s] claim,” he said. “The relationship between the deceased and [Ms Lodin] lasted for less than six years and the marriage itself lasted only 19 months.”
He also said Dr Lodin had “meticulously complied” with his obligations to provide financial support for his daughter while his ex-wife “was not entirely honest in her claims for support”.
Ms Lodin’s financial needs were, in part, the result of legal action taken against her ex-husband, who also was not to blame for the injuries she had suffered in a series of motor vehicle accidents, which had impacted her ability to work.
“The deceased cannot be said to have come under a moral duty to provide for the respondent because of injuries entirely unrelated to the parties’ relationship,” the judge said.
The judge found that Dr Lodin did not have a moral responsibility to leave money to his ex-wife simply because the estate, worth more than $5 million, was large.
Ms Lodin had been responsible for raising their daughter Rebecca but the deceased “had been ‘punctilious’ in complying with his obligation to pay not insubstantial amounts of child support”, Justice Sackville said.
The judge also noted that Ms Lodin had refused to allow her ex-husband access to their daughter, which he said was “not irrelevant” in determining Dr Lodin’s moral responsibility to leave money to his ex-wife.
“The fact that some may think the outcome unfair (if it be a fact) does not establish that there are factors which warrant the former spouse making a family provision application,” he said.
Phillip McGowan, the director of De Groots wills and estate lawyers, said the Court of Appeal had decided the primary judge had made an error in saying it was “unbecoming” for Rebecca to inherit her father’s entire $5 million estate.
“I think it is a good decision as it reflects society’s expectation that, in most cases, a final property settlement in the Family Court will be the end of any entitlement of a former spouse to provision from the estate of his/her deceased ex-spouse,”. Mr McGowan said.
“Whilst the law does give the right to a former spouse to make a family provision claim, there needs to be compelling reasons for the claim to succeed as society expects there to be finality in financial property settlements and a ‘clean break’ between the former spouses.”
Melissa Lammers, the solicitor director of Shire Legal, said: “There was a lot of uproar earlier this year when the initial decision was handed down.
“In our own experience, estate planning clients, fearful of claims being made by former spouses, were more inclined to insert statements into their wills as to why their former spouses were excluded from the will.
“However, the appellant court’s decision is now in line with the commonly held understanding by (and expectations of) divorcing spouses (and the community in general) that once a property settlement is reached ‘in full and final settlement of all claims between them’, then no further claims can be made.”