A Case Study-Death in Family Law

In the recent Family Court of Australia Decision in Baskin & Baskin  [2020] FamCA 401 The wife sought that she be substituted as a party for her late husband and that her Amended Initiating Application be dismissed.

The wife filed an Initiating Application on 21 May 2018 seeking orders for property settlement to which the husband filed a Response to Initiating Application on 25 June 2019, setting out the orders he sought. The parties then attended a Case Assessment Conference on 3 July 2019 where interim orders were made by consent and an agreement reached where the husband could attend the former matrimonial home to collect his personal belongings.

The husband was later found dead in the matrimonial home. He died without a valid Will and the wife was granted Letters of Administration of his estate on 19 November 2019. Subsequently, the wife then sought to be substituted as the husband’s “legal personal representative” in the Family Court proceedings.

The wife, subject to any application pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“Administration Act”) was entitled to the whole of the husband’s residuary estate. The wife contended that there was no other person who could be substituted for the husband in the proceedings as the son confirmed he did not intend to make a claim against his late father’s estate and the grandchild of the husband would not have been an “eligible person” for the purposes of a Part IV application under the Administration Act. The effect of the substitution would be that the wife would be both the applicant and the respondent to the property proceedings.

The Court accepted that there was no other person who could be substituted for the husband and the wife should in all the circumstances be substituted for the husband in the property proceedings.

The wife sought that the property applications be dismissed as she was now the husband’s legal personal representative. The basis for this submission was that although the Court would have made an order for property settlement if the husband had not died, in all of the circumstances of the case it would now not be appropriate to make an order.

The Court affirmed that had the husband been alive, it would have been just and equitable for the Court to have made orders adjusting property interests pursuant to section 79 of the Family Law Act 1975 (Cth). However, it determined that it was no longer appropriate to do so considering the husband’s death and that the wife was entitled to the husband’s estate. The Amended Initiating Application filed by the applicant wife on 16 December 2019 and the Response filed by the husband on 25 June 2019 were both accordingly dismissed.

The above case 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. For more information on the effect a death can have on a Family Law property division, view Death In Family Law, by Nikita Ward.

If you are contemplating separation from your spouse, or have separated but not yet made a Will, our team can assist you with your Family Law or Estate Planning queries. For more information and guidance on your matter please contact us on 8525 2700 to discuss your matter with one of our experienced Family Law or Wills and Estates Team, or click here to requst an appointment.

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Article by Nikita Ward
Photo by Danielle Dolson on Unsplash