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I will admit, the title of this blog is rather morbid. However, from an academic point of view, this topic demonstrates the inter-relationship between Family Law and Estate Law. With the stigma of divorce no longer looming, people may have multiple partners in life. This has the effect of creating blended families and in some cases, separation late in a person’s life. This, coupled with the extensive court delays litigants now face, has the potential for death to be a factor or issue in a party’s family law matter.
Under section 79(8) of the Family Law Act 1975 (“the Act”), a party’s personal legal representative may continue proceedings on behalf of the deceased party. There is no definition for “legal personal representative” under the Act, but it is generally agreed that this would be the legal personal representative of a deceased person being “the executor or administrator of the party’s estate” (See for example Korsky & Bright & Anor  FamCA 245).
Therefore, it is possible that the surviving spouse could also be the legal personal representative for the spouse who has passed away i.e. both the applicant and respondent. This is the case if the deceased party did not update their Will prior to their death and had previously nominated the other party as the executor of their estate. For this reason, it is critical that parties update their Will and Estate Plan as soon as possible following separation.
What if both parties die?
It would appear that section 79(8) of the Act is an exception to the rule that both parties should be alive for the proceedings to be continued. If both parties die during the proceedings then the Court will no longer have jurisdiction to hear the matter.
An example of a case where both parties died during the proceedings is:- Estate of MacKenzie (deceased) & Estate of MacKenzie (deceased) & Anor  FamCA 882.
The parties married in 1959 and separated in 1980. In 2003, the Public Guardian was appointed to manage the Wife’s affairs. In July 2003, the Husband executed a Will which left everything to the wife. The Husband then filed property proceedings. The Husband’s application sought the sale of the property (which was registered in the wife’s name) to be sold and divided 80:20 in his favour. The Public Guardian filed a response on behalf of the wife seeking 100% of the net proceeds of sale. The Husband died in June 2004. His estate was worth $11,000. The Executor of Husband’s Will was then appointed as personal legal representative. The Wife’s property was then sold and proceeds provided to the Wife. In May 2005, a woman named Ms Charles was granted leave to intervene. She alleged that she was in a defacto relationship with the Husband from 1995 to 2004. Leave was granted for her to intervene. The Wife died in January 2006. Her nieces and nephews were granted leave to be the Wife’s legal personal representative. The Wife’s estate worth $290,000. The Husband’s personal legal representative sought leave to continue the Husband’s application
The Court determined that there was no basis for the proceedings to be continued. The death of both parties bought about the end of the Court’s jurisdiction.
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