She made his life hell but still got a chunk of his estate
An ex-wife who vowed she would make “what was left” of her ex-husband’s “wretched life not worth living” has been awarded $750,000 from his estate by a court after he died without leaving a will.
The remarkable decision in the NSW Supreme Court in the case Lodin v Lodin ; Estate of Dr Mohammad Masoud Lodin  NSWSC 10 demonstrates the importance of getting expert legal advice on drawing up a will to ensure that your estate goes to the people you want it to go to.
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 misery”.
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 relationships change.
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 claims
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 decision discussed above was overturned on appeal in December 2017, in the case Lodin v Lodin  NSWCA 327. To read more about the reasons for the Court of Appeal’s decision, please see the expert commentary at the end of the article She made his life a misery but still wanted part of his estate – which case won?