Family Law matters usually involve many complexities and are often emotionally charged proceedings. However, often little consideration is given to the impact that the death of a party may have on proceedings and matters that will need to be addressed if this occurs.
If a party to a marriage dies prior to the completion of property settlement proceedings, the Family Court may enable the legal personal representative of the deceased party to ‘step into the shoes’ of the deceased for the purpose of the property settlement proceedings being completed.
Where property settlement proceedings are on foot, then it is necessary, in most instances, for these matters to be determined before the administration of the deceased person’s estate can be finalised (given assets and liabilities of the estate need to be ascertained for the estate to be administered).
The Family Court will generally allow the legal personal representative to be substituted in the proceedings for the deceased if the Court is of the opinion:
a) it would have made an order with respect to property if the deceased party had not died; and
b) notwithstanding the death of a party that it is still appropriate to make an order with respect to property.
If the Court does make an order, the order is enforceable against the estate of the deceased.
The key issue for determining the jurisdiction of the Court to act is whether the proceedings were commenced prior to the death of a party, or finalised prior to the death of both parties to the proceedings.
Accordingly, it is important that, where a legal personal representative is appointed to act in an estate, and family law matters were on foot, consideration is given to these issues.
At de Groots wills and estate lawyers, we have a team of experienced professionals who are ready to assist you with all of your estate planning needs. Telephone us on (07) 3221 9744 or visit our website to get started online.
