Key points
Survival of claims
Section 321 of the MRCA contains provisions enabling:
- A claim for compensation made prior to an eligible person’s death to continue and not be affected by their death; and
- A claim for compensation to be made after an eligible person’s death, as long as the claim is made by the Legal Personal Representative.
Note: Subsection 321(4) provides that where a claim under section 319 for a service-injury or disease was not made prior to an eligible person’s death, the Legal Personal Representative cannot make a claim for permanent impairment compensation.
Converting amounts to lump sums
Subsection 78(7) contains provisions preventing a Legal Personal Representative from converting a deceased person’s permanent impairment compensation to a lump sum.
Subsection 236(6) contains provisions preventing a Legal Personal Representative from converting compensation for a member’s death to a lump sum.
Legal Personal Representative
Legal Personal Representative is defined in Section 5 of the MRCA:
- The executor of the will, or the administrator of the estate, of a deceased person; or
- The trustee of the estate of a person under a legal disability; or
- A person who holds an enduring power of attorney granted by another person; or
- A person who, by order of a court or otherwise, has the legal administration or control of the affairs of another person.
What is compensation under the MRCA?
Compensation is defined in the MRCA to include:
- Permanent Impairment Payments
- Incapacity Payments
- Compensation for death (excluding bereavement payments and eligible young person compensation)
- Special Rate Disability Pension
- Treatment and Medical Costs
- Attendant Care and Household Services
- Alterations, Aids or Appliances
- MRCA Education and Training Scheme.
Provisions applicable on death of a veteran
Section 436 of the MRCA contains provisions relating to whom compensation is payable following the death of a veteran.
If there is a will
- If the veteran dies before compensation is paid, the MRCA provides that any amount of compensation payable forms part of the veteran’s estate.
If there is not a will
- If the veteran dies intestate (i.e. with no will) before compensation is paid and no application will be made for probate of the will or letters of administration, the MRCA provides that the Commonwealth is not liable to pay the compensation.
Considerations for applying subsection 436(2)
- However, before the delegate decides the Commonwealth is not liable to pay compensation, there are additional steps to be undertaken. The delegate should conduct the necessary investigations to ascertain whether another person is currently applying, or is intending to apply, for probate or letters of administration.
- Where the evidence indicates a person’s intentions in this regard, the delegate should set the claim aside until such time that sufficient evidence is provided on the court’s decision.
What if someone is granted letters of administration or probate?
- In the event a person is granted probate or letters of administration by the court, that person has legal control over the late veteran’s affairs and therefore will have authority to advise DVA where compensation should be paid.
Provisions applicable on death of a dependant
Section 436 of the MRCA also contains provisions relating to whom compensation is payable following the death of a dependant who was entitled to compensation following the death of a veteran.
If there is a will
- If the dependant dies before compensation is paid, the amount forms part of the dependant’s estate.
If there is not a will
- If the dependant dies intestate (i.e. with no will) before compensation is paid and no application will be made for probate of the will or letters of administration, the MRCA provides that the Commonwealth is not liable to pay the compensation.
Considerations for applying subsection 436(2)
- However, before the delegate decides the Commonwealth is not liable to pay compensation, there are additional steps to be undertaken. The delegate should conduct the necessary investigations to ascertain whether another person is currently applying, or is intending to apply, for probate or letters of administration.
- Where the evidence indicates a person’s intentions in this regard, the delegate should set the claim aside until such time that sufficient evidence is provided on the court’s decision.
What if someone is granted letters of administration or probate?
- In the event a person is granted probate or letters of administration by the court, that person has legal control over the late dependant’s affairs and therefore will have authority to advise DVA where compensation should be paid.
What general information should be requested before proceeding?
Regardless of whether a claim is made before or after the eligible person’s death, delegates need to ensure any matters relating to the claim are only conveyed to the Legal Personal Representative after the eligible person passes away. Delegates should therefore obtain the following information immediately upon being notified that a person has passed away:
- A copy of the will,
- A copy of letters of administration if the person dies intestate, and
- Any other relevant or analogous court documents.
Getting help
Where complex cases arise, delegates should seek assistance from Benefits and Payments Policy via the Delegate Support Framework as early in the process as possible. This will ensure the Department does not disclose information relating to a claim to a person who does not hold the relevant legal authority.