Subsection 436(1)
If there is a will
Subsection 436(1) of the MRCA provides that if an eligible person dies before an amount of compensation is determined and paid, the amount forms part of the person’s estate.
The late veteran or dependant will normally nominate their Legal Personal Representative in the will and only that person may provide the Department with instructions as to the bank account the compensation should be directed to.
What if there is more than one Legal Personal Representative?
In cases where a will nominates two or more people as Legal Personal Representatives, those people have equal legal authority to act on matters regarding the deceased’s estate, including equal legal authority to provide the Department with instructions as to the bank account the compensation should be directed to.
As an example, the delegate may decide to provide both Legal 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 Legal Personal Representatives does not wish to act in their position, then the other Legal Personal Representative is not limited in their position and may proceed to instruct the Department in this regard.
What if the Legal Personal Representative does not wish to act in their position?
In cases where a Legal 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 Legal Personal Representative is not able to unilaterally appoint another person to take over as Legal Personal Representative. Delegates will need to be provided sufficient evidence from the courts to show another person has been appointed to the role, before that person can be provided any information relating to the claim.
Subsection 436(2)
If there is not a will
If the veteran dies intestate (i.e. with no will) before compensation is paid, and the delegate determines that no application will be made for probate of the will or letters of administration, the Commonwealth is not liable to pay the compensation.
What if someone applies or is granted letters of administration or probate?
If the delegate determines a person has applied for letters of administration, that person has legal control over the late veteran or dependant’s affairs and therefore has authority to advise DVA where compensation should be paid, once the court grants letters of administration to that person.
Example 1
A claim for compensation is made by the veteran prior to their death, however before 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 the Legal Personal Representative. 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.