Subsection 111(1)
If there is a will
Subsection 111(1) of the DRCA provides that if a veteran dies before a determined amount of permanent impairment compensation is paid to a veteran, the amount forms part of the veteran’s estate.
This subsection relates to cases where the veteran dies with a will. The veteran will normally nominate their personal representative in the will and that personal representative may provide the Department with instructions as to the bank account the permanent impairment compensation should be directed to.
What if there is more than one personal representative?
In cases where a will nominates more than one person as personal representatives, those people have equal legal authority to act on matters of the late veteran’s estate, including equal legal authority to provide the Department with instructions as to the bank account the permanent impairment compensation should be directed to.
As an example, the delegate may decide to provide both personal representatives with a copy of the determination and a bank account form requiring the signatures of both parties. However, if information is provided confirming one of the personal representatives does not wish to act in their position, then the other personal representative is not limited in their position and may proceed to instruct the Department in this regard.
What if the personal representative does not wish to act in their position as personal representative?
In cases where a personal representative does not wish to act in their position, they may be able to renounce their role, however this can only be determined by the court. Delegates should be mindful that a personal representative is not able to unilaterally appoint another person to take over as personal representative. Only the court can appoint a personal representative and delegates will need to be provided sufficient evidence to show another person has been appointed to the role, before that person can be provided any information relating to the claim.
Subsection 111(3)
If there is not a will
Subsection 111(3) provides that if a veteran dies intestate and there is no other person apparently entitled to claim the estate, the amount is paid to the Commonwealth.
This subsection relates to cases where the veteran dies without a will and there is no other person who applies to the court for letters of administration or probate of the will and therefore, there is no one else apparently entitled to claim the estate.
Where delegates have conducted sufficient investigation to determine no one intends to apply for letters of administration or probate of the will, any determined amount of permanent impairment compensation is paid to the Commonwealth, which means it is not paid.
Example 1
A claim for permanent impairment compensation is made by the veteran prior to their death, however before permanent impairment compensation is determined and paid, the veteran passes away. The widow advises the delegate there is no will but that she is applying to the court for letters of administration. In the interim period before the court grants the widow letters of administration, the delegate should not provide the widow with any information relating to the claim. The court later appoints the widow as sole administrator and the delegate is satisfied the widow is a person apparently entitled to claim the estate. In this case, subsection 111(3) does not apply and subsection 111(1) has the effect that the amount of permanent impairment compensation is payable to the estate. The widow, in her position as administrator, may instruct the Department as to the bank account compensation should be paid to.
Getting help
If delegates require assistance with any matters relating to wills, estates or determining who is a personal representative, they should contact Benefits and Payments Policy via the Delegate Support Framework.