The law in NSW allows certain types of civil litigation and claims in Courts and Tribunals to continue even after the death of a party to the proceedings. If you are involved in any kind of litigation or claim, it is important that you consider the consequences if you were to die during the process.
Benefits of an up-to-date Will
There are many benefits of having an up-to-date and valid will. If you are involved in litigation, however, one of the more important benefits of a will is that it allows your family and legal representatives to quickly and easily make arrangements for the administration of your estate and for the future conduct of your current litigation. This is because it is often the executor of your estate that will be responsible for protecting your assets or maximising the size of your estate – which can include seeking an award for damages and continuing litigation.
Disputes can arise after your death as to who should represent your estate if you have not made your wishes clear in a valid will. If you do not have a will, or you have made an informal will, there may be doubt regarding who you wanted to represent your interests after your death and this could cause significant delays. If it is not clear who you wanted to be the executor of your estate, it may be very difficult for your Court proceedings to be continued or resolved in your absence.
In Court proceedings, if a party to a matter dies, but the cause of action survives, the Court may dismiss the proceedings if an order seeking to join a person in the deceased’s place is not sought within 3 months from the date of death.
If a claimant in the Dust Diseases Tribunal dies before their matter is resolved, the claim process is suspended until leave is granted to amend the Court papers. Notice must also be given in writing to the other parties of the death. Consideration should be given to whether a compensation to relatives claim could also be made. There are, of course, other formal requirements that need to be addressed which often requires the assistance of experienced lawyers, but the lawyers will need to know who to take instructions from. Nominating an executor in your will can make the process of continuing your litigation much quicker, easier and more cost effective as your wishes have been clearly set out.
Accredited specialists in Wills & Estates
If you do not have a will and you are involved in any kind of litigation or claim, we encourage you to contact us on 13 43 63 or via our contact us form without delay so we may assist prepare a will for you.