The couple had divorced 25 years earlier after being together
for 18 months, during which they had a daughter. The husband, a
doctor, signed a matrimonial financial separation and paid all his
child support obligations.
Long-term campaign of persecution and false allegations
That should have provided a clean break for the couple, but the
ex-wife conducted what the judge called "a relentless
persecution of the deceased" and "she carried into
effect, as best she could, her stated aim of making his life a
This included her threatening to "destroy your life"
unless he gave her an extra $60,000 and bringing professional
conduct proceedings against him. She then alleged to police that he
had sexually abused his daughter and threatened to kidnap her.
These allegations were dismissed.
The doctor died without a will, leaving an estate of $5 million
that under the rules of intestacy went to his daughter.
The judge ruled that despite the ex-wife's "post
divorce persecution", she was entitled to 15 per cent of the
estate because the relationship and its breakdown had had a serious
impact on her life.
Need to update your will when your relationships change
It was unusual for a court to order a portion of an estate to be
allocated to an estranged person who had been hostile to the
deceased for two decades.
If courts are now going to be awarding a portion of the estate
to these sorts of claimants, it shows how important it is to have
an expertly drawn up will, and to update that will as your
In this case it was a large estate of $5 million and millions
were left for the daughter. I doubt that there would be such an
outcome with a smaller estate.
Obtaining a section 95 release of rights to prevent future
When ending a relationship, it is important to finalise the
property settlement. It would be wise to get a
section 95 release under the NSW Succession Act 2006 so that your ex cannot make a
claim on your estate in the future.
The release would not normally be set up when you are still in a
relationship with your spouse, but it can be wise when a
relationship ends and when you are entering into a family law
settlement. It is also a good idea if entering into a new
relationship if you have children to a previous relationship.
Supreme Court needs to approve Section 95 releases
Section 95 releases are not included in separation orders. The
complexity is that the release needs to be formally approved by the
Supreme Court of NSW (not the Family Court dealing with the
separation orders). Generally the Supreme Court only stamps off on
the release with representation by a barrister or an experienced
solicitor for both parties. In the view of the court, it is a big
step to forfeit rights to bring a claim against an estate, so it
wants to make sure that this course of action is appropriate.
In the event of separation, when getting family court orders
finalising a property settlement, you may consider also applying
for a separate section 95 release to ensure that your ex has no
claim on your estate in the future – even 25 years into the
future, as this case demonstrates.
The person named as an executor in the deceased's will has the right to arrange for the burial of the deceased's body.
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