FAMILY PROVISION – PERSON ELIGIBLE TO APPLY MUST BE ALIVE

Date: Jul 16, 2012
Document Type: Article

The categories of “eligible persons” are set out in Section 57 of the Succession Act 2006and include:

  • surviving spouse of the deceased at the time of the deceased’s death
  • de facto spouse at the time of the deceased’s death
  • child of the deceased
  • former spouse of the deceased
  • a person :

(i)            who was at any particular time wholly or partially dependent upon the deceased; and

(ii)           who is a grandchild of the deceased or was a member of the household of which the deceased was a member.

  • A person with whom the deceased was living in a closed personal relationship at the time of death.

It is clear from decided cases that the eligible person must be living at the time the order is made so that if, for example, an eligible person is alive at the time of the deceased’s death but dies before commencing proceedings or after commencing proceedings but before judgment, the cause of action dies with the eligible person and cannot be continued by the estate of the eligible person.

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