Current at 18 July 2023 (originally published 10 August 2020)
Where a spouse passes away before property proceedings have concluded, the proceedings can be continued by the legal personal representative of the deceased party under s.79(8) of the Family Law Act 1975.
The Family Court of Western Australia does not have the power to make orders appointing a legal personal representative. The s.79(8) power is to make orders substituting the existing legal personal representative – not for the appointment of one.
A spouse’s claim to bring s.79 property proceedings is a personal right and abates upon death. Section 79(8) provides for the creation of a new class of proprietary rights, which are only created if the proceedings are continued by or against the legal personal representative of the deceased spouse (see Fisher & Fisher  HCA 61)
This means that if no application is made for substitution of the deceased’s legal personal representative, the Court does not have the power to make final Orders (see Tate & Hunter (Deceased)  FamCA 124).
The appointment of a legal personal representative is determined by the deceased’s Will, a grant of probate, letters of administration, or order of the Supreme Court WA (see Doyle and Doyle (deceased) (1989) FLC 92-027).
If a party dies intestate, the other spouse may be their legal personal representative.
The practical implications of this include the following:
- It is important that clients experiencing family law issues ensure they have a valid Will from the outset, and are mindful of who they have appointed as their legal personal representative.
- It is essential that clients review their Will during relationship breakdown. An invalid Will, or dispute about appointment of a legal personal representative, can result in difficulties and delays for their estate if they pass away during proceedings.
- If you are the legal personal representative of a deceased spouse, you cannot selectively opt out of participating in continuing Family Court proceedings. If you decline to continue the proceedings, the Family Court proceedings will discontinue.
- Form of orders is important – incorrect drafting of orders seeking the appointment of a legal personal representative instead of substitution will be void, and
- The power or make an order for substitution under s.79(8) is discretionary. The Court will consider whether they would have made orders if the spouse had not died, and whether it is still appropriate to make Orders.
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