Ex-wife of deceased doctor loses $750,000 legacy on appeal

Published 20 Dec 2017

A woman who was awarded $750,000 following a family provision claim against her deceased ex-husband’s estate has lost her case on appeal.

We covered the trial in March, in which the plaintiff received the legacy despite having been divorced from her late spouse, a successful doctor, for nearly 20 years prior to his death.

Justice Paul Le Gay Brereton originally decided that the woman should receive provision from the deceased’s $5 million estate, as she had cared for their daughter after the marriage collapsed, allowing him to focus on his career.

The judge said the woman suffered severe psychological problems, which were allegedly the result of the divorce and made her exceptionally bitter towards her former husband.

Daughter launches appeal

The deceased’s daughter, who was the sole beneficiary of her father’s will and is estranged from her mother, challenged the family provision claim in the NSW Court of Appeal.

“His Honour’s decision is so divorced from reality, so unrepresentative of community standards or expectation, and so totally inconsistent with the objects and principles of family provision legislation as to be wrong and thus deserving of appellate correction,” the daughter’s legal team argued.

A key area of contention was Justice Brereton’s reliance on two psychological reports that suggested the deceased’s former spouse had serious mental health problems resulting from her marriage. The judge inferred from the assessments that the deceased’s conduct had contributed to the woman’s problems.

Justice Brereton also suggested that it was “unbecoming” that the daughter should receive the entirety of a $5 million estate, while the deceased’s former spouse was left in “circumstances of considerable need”.

Appellate judges overturn decision

The appellate judges disagreed with Justice Brereton’s findings on several counts.

First, they felt it was beyond the reach of a judge to place moral weight on the size and beneficiaries of an estate, as was suggested when he called the original distribution of assets “unbecoming”.

Second, the appellate judges disagreed with the extent to which Justice Brereton relied on psychological reports, one of which was compiled in approximately one hour, to gauge the deceased’s responsibilities to his former wife.

This was particularly true as the assessments were nearly 25 years old by the time the deceased passed away and had little bearing on the woman’s current state of mind. As such, the appeal succeeded and the original decision was set aside, with the deceased’s daughter due to become the sole beneficiary once again.

Would you like to discuss a family provision claim? Please contact Gerard Malouf & Partners Will Dispute Lawyers for more information.

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