Death in family law proceedings

Family law proceedings can often stretch over a number of years whilst parties progress through the Family Court system. Where one party is unwell, a commonly asked question is what happens if my partner passes away before we reach a resolution? Can I control what my spouse includes in their will?

In the recent Family Court of Australia Decision in Baskin & Baskin [1], the Husband passed away during the proceedings. The following facts are important to the decision reached:

  1. The parties were married in 1982 and had two adult children. At the time of the proceedings, one child had passed away and the surviving child was 31 years old.
  2. The asset pool available for division was approximately $3,000,000 including superannuation.
  3. The Wife filed proceedings in May 2019 for a property settlement. An altercation occurred in June 2019 between the Husband and Wife with an Intervention Order being made on the Wife’s behalf by Victoria Police listing her as a protected person. The Husband was prevented from coming within 200 metres of the former matrimonial home.
  4. The Husband filed a response to the Wife’s Application for a property settlement on 25 June 2019. The Husband and Wife both attended a case assessment conference on 3 July 2019, where following the scheduled Court event, the Wife agreed for the Husband to attend the property to collect his personal belongings.
  5. The Husband attended the family home whilst the Wife and the parties’ son were not in attendance. The son, upon returning to the property, found the Husband dead in the garage having committed suicide. The Husband left a suicide note stating “now you have all my money and my life”.

Following the Husband’s suicide, the Wife was granted Letters of Administration of the Husband’s Estate on 19 November 2019. Letters of Administration is an Order granted by the Supreme Court which gives a person the legal right to deal with the estate of a deceased person who died without leaving a valid will.  The Wife, as the Husband’s spouse and subject to any claim for further provision was entitled to the whole of the Husband’s Estate [2].

Following the grant, the Wife then sought to be substituted as legal personal representative of the Husband’s Estate meaning effectively, in the Family Law proceedings, she would be both the Applicant and the Respondent.  The Wife therefore sought that her Application for a property settlement be dismissed and she retain the property pool in its entirety.

Did the Wife receive the entirety of the property pool?

Justice Macmillan delivered a judgement on 25 May 2020 that the Wife in her capacity as administrator of the Estate of the Husband be substituted as a party for the Husband.  After doing so, Justice Macmillan made a further order that the proceedings be dismissed.

Her Honour’s decision was predicated on the following basis:

  1. Where a party to the marriage dies during proceedings but prior to property proceedings being completed, the proceedings may be continued by the legal personal representative of the deceased party.  The Wife, in this case, was the only person who could be substituted for the Husband in the proceedings.
  2. The Wife filed an Affidavit deposing that she was unaware of anyone who would be able to make a claim against the Husband’s estate pursuant to Party IV of the Administration and Probate Act for further provision. The parties’ son gave oral evidence in Court to confirm he did not intend on making a claim.  The Court did not consider there were any other eligible persons who would have an entitlement to further provision.
  3. It was agreed that an Order dismissing the proceedings should not be made until after the expiration of the requisite period of 6 months from the date which the Letters of Administration were granted and the date where an application could be made against the Husband’s Estate for further provision. This was to ensure that any potential future claimants had the opportunity to come forward.

What can we take from Baskin & Baskin?

Whilst the circumstances in Baskin & Baskin are tragic for all involved, it highlights the importance of making a Will, even if your property proceedings have not yet been finalised.

The trajectory of this case could have been very different if the Husband had a valid Will and had appointed a third party as an executor, or provided for his Estate on his death to pass to the parties’ son, rather than the Wife.

How we can help

If you are contemplating separation from your spouse, or have separated but not yet made a Will, our expert team can assist you with your Family Law or Estate Planning queries. For more information and guidance, please do not hesitate to contact us.

[1] Baskin & Baskin [2020] FamCA 401 (25 May 2020)
[2] Section 70K Administration and Probate Act 1958 (Vic)