The Facts

Husband and wife divorce after 19 months of marriage

Dr and Ms L met in 1984 when he was practicing as a GP and she was his patient. Shortly after meeting, they commenced a relationship and their daughter was born in 1986.

Dr and Ms L married in 1988. However, the relationship was short and they separated in 1990, after 19 months of marriage.

Family Court proceedings were commenced in April 1992 and the property settlement was finalised in December 1992, with Ms L receiving 38% of the property pool.

The divorce was finalised in 1995.

Husband dies without leaving will and estate goes to daughter

Dr L died in June 2014, about 24 years after separating from Ms L. He did not leave a will, but did leave behind an estate worth $5 million.

At the time of his death, Dr L was estranged from his daughter, whom he had not seen in 13 years.

Following the grant of administration by the Supreme Court, the estate was distributed to the daughter under the rules relating to the distribution of an estate on intestacy.

Ex-wife successfully claims for family provision and daughter appeals

Ms L made a claim against her ex-husband's estate under the NSW Succession Act 2006 ("the Act"), which allows a former spouse to make a family provision claim against an estate.

At the time, Ms L's financial circumstances were poor, with her main source of income being the disability support pension that she had been receiving since being injured in a car crash in 2000. She also had ongoing health problems, including diabetes and chronic pain, as well as restrictions from the spinal injuries she had suffered in the car accident.

In 2017, the Supreme Court ruled in favour of Ms L and awarded her $750,000 out of her ex-husband's $5 million estate.

The daughter made an application to the NSW Court of Appeal to appeal this decision.

case a - The case for the daughter

case b - The case for the ex-wife, Ms L

  • As a former spouse, my mother is only eligible to make an application for family provision out of my father's estate if she can demonstrate that my father had a moral obligation to make some provision for her.
  • My mother and father's relationship ended almost a quarter century ago and their financial settlement was a "clean break". It took into account that my mother's earning capacity was less than my father's and that she would have ongoing care responsibilities for me. Although I lived with my mother, my father always complied with his child support obligations and also gave additional financial support over and above his legal responsibilities.
  • For the last 24 years of my father's life, my mother's attitude towards him was one of relentless persecution as she pursued her stated aim of making his life a misery. My mother also refused to let my father see me unless he paid ever increasing amounts of child support. Once, she even accused him of planning to kidnap me and sought an apprehended violence order against him. The proceedings were dismissed and my father described these events as "deeply humiliating". My mother once wrote to my father that unless he paid my university fees, she would "personally make what is left of [his] wretched life not worth living".
  • My mother's financial problems were partly attributable to her pursuit of costly and unsuccessful legal proceedings against my father, including an unsuccessful claim for damages for breach of professional duties.
  • My mother claims that the circumstances of the break up of her marriage to my father caused her psychiatric disabilities which have impaired her ability to gain employment. However, the only evidence she has provided to support this are psychiatric reports that are over 20 years old. There is also no evidence that my mother suffered from any psychiatric condition at the date of the hearing.
  • Given the "clean break" after my parents' separation and my mother's behaviour towards my father, my father did not owe a moral obligation to make provision for her. The court must overturn the trial judge's decision.
  • Under succession law, a family law settlement does not preclude me from making a family provision claim, and my ex-husband still had a moral obligation to make provision for me.
  • When the Family Court divided up our assets, the judge assumed that I would complete my university studies and secure employment. This did not eventuate. My care responsibilites towards our daughter precluded me from securing employment until 2000, at which time I was in a motor vehicle accident that prevented me from working subsequently.
  • After the family law settlement, my ex-husband accumulated the substantial assets which ultimately became his $5 million estate. He was only able to do this because I raised our daughter all on my own, with minimal involvement from him.
  • He also caused the circumstances of need that I find myself in. His conduct during our relationship and our marriage breakdown left me with deep psychological scars that have impaired my mental functioning. For example, he engaged in inappropriate sexual conduct towards me while I was a patient, for which the NSW Medical Board made a finding of professional misconduct against him.
  • Although the psychiatric reports before the court are old, they establish that my ex-husband's conduct caused me to develop a psychiatric illness that disabled my mental functioning. As the psychiatrist opined, my ex-husband was in a position of power and authority over me and the trauma experienced by me "is thus much more complex and qualitatively different from the trauma of a normal marriage breakdown since it represents a betrayal and an exploitation by a person in a fiduciary relationship".
  • It's true that my behaviour towards my ex-husband was hostile, but this was caused by my psychiatric disabilities and should not preclude me from making a family provision claim.
  • It was wrong of my ex-husband to leave everything to our daughter and nothing to me. There is something unbecoming about an arrangement under which I am left in circumstances of considerable need, reliant on a social security pension, whilst our daughter, whom I raised on my own, inherits in excess of $5 million.
  • Given my husband's role in causing my position of need and the size of his estate, he had a moral obligation to make provision for me, and the court should dismiss my daughter's appeal.

So, which case won?

Cast your judgment below to find out

Family provision claims
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.